*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

1 of 28 6560

- 50

- P EO12866MeBrCUE2060
- AS44NPRM01 20 15.doc ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 82 [EPA
- HQ
- OAR
- 2013
- 0369 ; FRL - XXXX ] 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 amoun t 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. DATES: Comments must be submitted by [ insert date 30 days after date of publication in the federal register ]

. ADDRESSES: Submit you r 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*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

2 of 28  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 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 arrangement s 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 , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI ) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through 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 addr ess 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
t he body of your comment and with any disk or CD

- ROM you submit. If EPA cannot*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

3 of 28 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

s pecial 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 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 i s restricted by statute. 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.regulati ons.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 nu mber for the Public 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*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

4 of 28 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 exemp tion 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 thi

s 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*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

5 of 28 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 E

PA 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 inform

ation 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 do cket 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 Regulations (CFR) par t 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 bu rdens, explain how you arrived at your estimate in*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

6 of 28 sufficient detail to allow for it to be reproduced.

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

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

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

spectrum pesticide and is controlled under the CAA as a Class I ozone

- depleting substance (ODS). Methyl bromide was once widely used as a fumigant to control a variety of pests such as insects, weeds, rodents, pathogens, and nematodes. Information on methyl bromide can be found at http://www.epa.gov/ozone/ mbr. Methyl bromide is also regulated by EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and other statutes and regulatory authority, as well as by States under their own statutes and regulatory authority. Under FIFRA, methyl bromide i s 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 provisi ons 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 comply with FIFRA and other pertinent statut ory and regulatory requirements for pesticides (including, but not limited to, requirements pertaining to restricted use pesticides) when producing, importing, exporting, acquiring, selling, distributing, transferring, or using methyl bromide. The provisio ns in this proposed action*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

7 of 28 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 Regulation s 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 publish ed 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 agr eement 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 Protocol and the United States ratified the Protocol in 1988. Co ngress then enacted, and President George H.W. Bush signed into law, the Clean Air Act Amendments of 1990 (CAAA of 1990) , which included Title VI on Stratospheric Ozone Protection, codified as 42 U.S.C. Chapter 85, Subchapter VI, to ensure that the United
States could satisfy its obligations under the Protocol. EPA issued regulations to implement this legislation and has since amended the regulations as needed. Methyl bromide was added to the Protocol as an ozone

- depleting substance in 1992 through the Cop enhagen 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 bromid e production and consumption for developed countries. EPA*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

8 of 28 published a 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 th e 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 wa s 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 sectio n 602(d) of the CAAA of 1990, which, for newly listed Class I

ozone - depleting substances provides that “no extension [of the phaseout schedule in section 604] under this subsection may extend the date for termination of production of any class I substance to a date more than 7 years after January 1 of the year after the year in which the substance is added to the list of class I substances.” At the Seventh Meeting of the Parties (MOP) in 1995, the Parties 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 phaseout date in accordance with section 602(d) of the CAAA of 19 90. 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 countries operating under Article 5 of the Protocol (developing countries )

.*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

9 of 28 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. Con gress 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 provid e 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 amendm ent 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 rulemaking on November 28, 2000 (65 FR 70795), which allowe d 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 amended the 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 rule (the “Framework Rule”) that established the framework for the critical u se 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 ru les applying the critical use exemption framework for each of the annual control periods from 2006 to 2015

.*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

10 of 28 Under authority of section 604(d)(6) of the CAA, EPA is 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 XX V I / 6 , taken at the Twenty

- Sixth Meeting of the Parties in November 2014

. In accordance with Article 2H(5) of th e Montreal Protocol , the Parties have issued several Decisions pertaining to the critical use exemption. These include Decisions 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 , (4 64 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 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. 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 t

h 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 the 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 t hat are acceptable from the standpoint of environment and health and are suitable to the crops and*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

1 1 of 28 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 methy

l bromide. EPA requested critical use exemption applications 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 whethe r there are technically and economically feasible alternatives available for a particular use of methyl bromide, and whether there would be a significant market disruption if no exemption were available. In addition, an interagency workgroup reviews other parameters of the exemption applications 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*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

12 of 28 consults with the United States Departme nt 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 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 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 contained the requ est for 2016 critical uses. In March 2014, MBTOC sent questions to the United States concerning technical and

eco nomic issues in the 2016 nomination. The United States transmitted responses to MBTOC in March, 2014. In May 2014 , the MBTOC provided their interim recommendations on the U.S. nomination in the May TEAP Interim Report. These documents, together with report s by the advisory bodies noted above, are in the public docket for this rulemaking. The proposed critical uses and amounts authorized in this rule reflect the analyse s contained in those documents.

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”*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

13 of 28 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 Ru le, EPA has annually promulgated regulations to exempt specific quantities of production and import of methyl bromide and to indicate which uses meet the criteria for the exemption program for that year. This proposed action continues the approach establi shed in the 2013 rule 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 Cri tical 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 con ditions are 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 satisfy critical uses ....”*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

14 of 28 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 criti cal uses and critical users based on th e amounts 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. EPA is seeking comment on the technical analyses contained in the U.S. nomination (available for public review in the docket) 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 submi tted . EPA recognizes that as the market for alternatives evolves, the thresholds 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 analysis 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 thos e agreed to by the Parties for 2016

. 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. Specifically, EPA is proposing to remove the food processing uses that were listed as critical use s for 2014. The California Date Commission as well as a ll users under the food processing use ( r ice millers , p et food manufacturing facilities , and m embers of the Nort

h American Millers’*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

15 of 28 Association) d id not submit applications for 2016 and therefore were not included in the
2016 U.S. nomination. EPA is also proposing to remove the remaining commodity uses ( walnuts, dried plums, figs, and 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 , eg

gplant, 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 ; ornamental growers in Califo rnia 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 agricultural sector, and whether signif icant market disruption would occur as a result. As a result of this technical review, the United States Government ( U SG ) 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 there are technically and economically feasible alternatives to methyl br omide.
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*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

16 of 28 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 t o exempt 234,780 kg 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 not 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. Deci sion XXVI/6 state s 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, the Decision states that “parties operating under critical

- use exemptions should take into account the extent to which methyl bromide is available in*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

17 of 28 sufficient quantity and quality from existing stocks

.... ” E arlier Decisions also refer to the use of “quantities of methyl bromi de 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 require EPA to adjust the amount of new production and import to r eflect 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 t

hat 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

reason s including: a pattern of significant underestimation of inventory drawdown; the increasing concentration of critical users in California while inventory remained distributed nationwide; and the recognition that the agency cannot compel distributors to sel l inventory to critical users. For further discussion, please see the 2013 CUE Rule. EPA believes these circumstances remain true for 2016. First, EPA 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 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 remain 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 pu rchase stocks in*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

18 of 28 2015 as a result of the changes to FIFRA labeling , except for sectors with QPS 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 in ventory available for use in 2016 . EPA specifically invites comment on whether 0% or 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, the quantity and geographical location of authorized uses, and the quantity and location of stocks

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

. We re 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 existing 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 the amount of methyl bromide produced or imported under the critical use exemption, but not exported or sold to end

- users 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. So for example, t he amount of carryover from 2014 is factored into the determination for 2016

. Carryover material (which is produced using critical use*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

19 of 28 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 will 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 age ncy 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 availabil ity 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 amounts through the nomination and authorization process. EPA will consider new data 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*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

20 of 28 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 the four companies that hold baseline allowances, in proportion to their respe ctive 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 authorizing 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 Framework Rule that a lump

- sum, or uni versal, 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 significan t 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 approach adopted in the Framework Rule, the actual critical use will closely follow the sector breakout listed in the Parties’ decisions.
E . The Criteria in Decisions IX/6 and Ex. I/4*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

21 of 28 Decision XXVI/6 call

s on Parties to apply the conditions set forth in Decision Ex.
I/4 (to the extent applicable) and the criteria in Decision IX/6 paragraph 1 to exe mpted critical uses for the 2016 control period. A discussion of the agency’s application of the criteria in paragraph 1 of Decision IX/6 appears in S ections II .A., and II .C. of this preamble. EPA solicit s 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 in paragraph 1 of Decision IX/6, ap art from the criterion located at paragraph (b)(ii), as well as the criteria in paragraphs 5 and 6 of Decision Ex. I/4. The criterion in Decision IX/6 paragraph (1)(b)(ii), which refers to the use of available stocks of methyl bromide, i s addressed in section II .D . of this preamble. The agency has previously provided its interpretation of the criterion in Decision IX/6 paragraph (1)(a)(i) regarding the presence of significant market disruption in the absence of an exemption

. EPA refers re aders 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 losses at both an individual level and at an aggregate level, and evaluating potential losses in both relative and absolute terms

. The remaining considerations are addres sed in the nomination documents including : the lack of available technically and economically feasible alternatives under the circumstance of the nomination; efforts to minimize use and emissions of methyl*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

22 of 28 bromide where technically and economically feasible; the development of research and transit ion 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 methodolo gy they use to determine economic feasibility. Some of these criteria are evaluated in other documents . T he United States has considered the adoption of alternatives and research in to methyl bromide alternatives (see Decision IX/6 paragraph (1)(b)(iii) ) i n the development of the National Management Strategy submitted to the Ozone Secretariat in December 2005, 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 docket for this rulemaking.
F . Emissions Minimization 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

2 Additional information on risk mitigation measures for soil fumigants is available at http://epa.gov/pesticides/reregistration/soil_fumigants/*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

23 of 28 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, where suc h tarps are allowed. 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
governm ent 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: 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 te chniques 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 a nd Executive Orders can be found at http://www2.epa.gov/laws

- regulations/laws

- and

- executive

- orders.*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

24 of 28 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) I certify that this action will not have a significant 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 economic 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 burd en for all directly regulated small entities.*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

25 of 28 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 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 o n the distribution of power and responsibilities among the 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 uniquely affect the communities of Indian tribal governments nor does it impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this action.
G. E xecutive Order 13045: Protection of Children from Environmental 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 bel ieve 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 Benefits Analysis found in the docket.*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

26 of 28 H. Exe cutive 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 technical standards. J. Executive Order 12898: Fed eral 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 population, inclu

ding any minority or low

- income population. Any ozon e 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 t he 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.*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

27 of 28 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

. A mend § 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

. * * * * * (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 Protection of Stratospheric Ozone: The 2016 Critical Use Exemption from the Phaseout of Methyl Bromide (Page 27 of 28)*** E.O. 12866 Review

– D raft

– Do Not Cite, Quote, or Release During Review ***

28 of 28 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 CRITICA L 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 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