1

Arling, Jeremy

From: Arling, Jeremy

Sent: Wednesday, June 26, 2013 3:17 PM

To: 'Frey, Nathan J.'

Cc: Chamberlin, JohnB; Donaldson, David

Subject: RE: Summary of Interagency Comments Under EO 12866/13563 -- 2013 Methyl Bromide 

CUE final rule

Attachments: EO12866MeBr20132060-AR41Final20130626.docx

Nate

Please find attached a revised version of the 2013 CUE Rule based on the comments we received. 

Jeremy Arling

U.S. EPA

Stratospheric Protection Division

Office of Atmospheric Programs

Mail Code: 6205J

1200 Pennsylvania Avenue, NW

Washington, D.C. 20460

202-343-9055

arling.jeremy@epa.gov

From: Frey, Nathan J. [mailto:Nathan_J._Frey@omb.eop.gov] 

Sent: Tuesday, June 18, 2013 4:32 PM

To: Chamberlin, JohnB; Donaldson, David; Arling, Jeremy

Subject: Summary of Interagency Comments Under EO 12866/13563 -- 2013 Methyl Bromide CUE final rule

Attached please find a summary of interagency comments under EOs 12866 and 13563 regarding EPA’s 2013 critical use 

exemption for the phaseout of Methyl Bromide final rule. Please let me know if you have any questions or would like to 

discuss. 
Summary of Interagency Working Comments on Draft Language under 

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6560-50-P

EO12866MeBr20132060-AR41Final20130626.doc

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2010-0280; FRL-9809-7]

RIN: 2060-AR41

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

Phaseout of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is authorizing uses that qualify for the 2013 critical use exemption

(CUE) and specifying the amount of methyl bromide that may be produced or imported 

for those uses. EPA is also amending the regulatory framework to remove certain 

requirements related to sale of pre-phaseout inventory for critical uses. EPA is taking this 

action under the authority of the Clean Air Act to reflect a consensus decision taken by 

the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer at the 

Twenty-Third Meeting of the Parties. 

DATES: This rule is effective on [insert date of publication in the FEDERAL 

REGISTER].

ADDRESSES: EPA has established a docket for this action under Docket ID No. EPAHQ-OAR-2010-0280. 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., 
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CBI or other information whose disclosure is restricted by statute. Certain other material, 

such as copyrighted material, is not placed on the Internet and is publicly available only 

in hard copy form. Publicly available docket materials are available either electronically 

through www.regulations.gov or in hard copy at the Air and Radiation Docket, EPA/DC, 

EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 

legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, 

and the telephone number for the Air and Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For further information about this 

rule, contact Jeremy Arling by telephone at (202) 343-9055, or by e-mail at 

arling.jeremy@epa.gov or by mail at U.S. Environmental Protection Agency, 

Stratospheric Protection Division, Stratospheric Program Implementation Branch 

(6205J), 1200 Pennsylvania Avenue, N.W., Washington, D.C., 20460. You may also visit 

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

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

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

science of ozone layer depletion, and related topics.

SUPPLEMENTARY INFORMATION: This rule concerns Clean Air Act (CAA) 

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

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

Act, methyl bromide consumption (consumption is defined under section 601 of the CAA 

as production plus imports minus exports) and production were phased out on January 1, 
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2005, apart from allowable exemptions, such as the critical use and the quarantine and 

preshipment (QPS) exemptions. With this action, EPA is authorizing uses that qualify for 

the 2013 critical use exemption as well as specific amounts of methyl bromide that may 

be produced and imported for critical uses in 2013.

Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. Chapter 5, 

generally provides that rules may not take effect earlier than 30 days after they are 

published in the Federal Register. EPA is issuing this final rule under section 307(d)(1) of 

the Clean Air Act, which states: “The provisions of section 553 through 557 . . . of Title 

5 shall not, except as expressly provided in this section, apply to actions to which this 

subsection applies.” Thus, section 553(d) of the APA does not apply to this rule. EPA is 

nevertheless acting consistently with the policies underlying APA section 553(d) in 

making this rule effective on [Insert date of publication in the FEDERAL 

REGISTER]. APA section 553(d) allows an effective date less than 30 days after 

publication for a rule that “that grants or recognizes an exemption or relieves a 

restriction.” 5 U.S.C. § 553(d)(1). Since today’s action can be considered to either grant 

an exemption for limited critical uses during 2013 from the general prohibition on 

production or import of methyl bromide after the phaseout date of January 1, 2005, or 

relieve a restriction that would otherwise prevent production or import of methyl bromide 

or sale of pre-phaseout inventory for critical uses, EPA is making this action effective 

immediately upon publication.

Table of Contents

I. General Information

A. Regulated Entities
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II. What Is the Critical Use Exemption Process?

A. Background of the Process

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

C. Critical Uses

D. Critical Use Amounts

E. Critical Stock Allowances

1. Determining the Level of Available Stocks

2. Amending the Critical Stock Allowances Framework

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

G. Emissions Minimization

III. Statutory and Executive Order Reviews 

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

Order 13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

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

Governments

G. Executive Order 13045: Protection of Children from Environmental 

Health and Safety Risks

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

Distribution, or Use

I. National Technology Transfer and Advancement Act

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

in Minority Populations and Low-Income Populations

K. Congressional Review Act

I. General Information

A. Regulated Entities

Entities and categories of entities potentially regulated by this action include 

producers, importers, and exporters of methyl bromide; applicators and distributors of 

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

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

stored food commodities and structures such as grain mills and processors. This list is not

intended to be exhaustive, but rather to provide a guide for readers regarding entities 

likely to be regulated by this action. To determine whether your facility, company, 
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business, or organization could be regulated by this action, you should carefully examine 

the regulations promulgated at 40 CFR part 82, subpart A. If you have questions 

regarding the applicability of this action to a particular entity, consult the person listed in 

the preceding section.

II. What is the Critical Use Exemption Process?

A. Background of the Process

Article 2H of the Montreal Protocol established the critical use exemption 

provision. At the 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) there are no technically and 

economically feasible alternatives or substitutes available to the user that are acceptable 

from the standpoint of environment and public health and are suitable to the crops and 

circumstances of the nomination.” EPA promulgated these criteria in the definition of 

“critical use” at 40 CFR 82.3. 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.

Comment [A1]: Does this take into account the 

cost of allowing the use of methyl bromide? And can 

this be stated as of social cost of carbon units?

Methyl bromide is not a GHG so this analysis is not 

applicable.

Comment [A2]: Can the amount be stated in 

carbon equivalent?

Methyl bromide is not a GHG so this analysis is not 

applicable.
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In addition, the Parties decided 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 all 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 methyl 

bromide is not available in sufficient quantity and quality from existing stocks of banked 

or recycled methyl bromide.

In response to EPA’s request for critical use exemption applications published in 

the Federal Register on July 15, 2010 (75 FR 41177), applicants provided data on the 

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

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

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

emissions of methyl bromide.

EPA reviews the data submitted by applicants, as well as data from governmental 

and academic sources, to establish whether there are technically and economically 

feasible alternatives available for a particular use of methyl bromide, and whether there 

would be a significant market disruption if no exemption were available. In addition, an

interagency workgroup reviews other parameters of the exemption applications such as 

dosage and emissions minimization techniques and applicants’ research or transition 

plans. This assessment process culminates in the development of the U.S. critical use 

nomination (CUN). Annually since 2003, the U.S. Department of State has submitted a 

CUN to the United Nations Environment Programme (UNEP) Ozone Secretariat. The 
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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 make Decisions on the authorization of critical use 

exemptions for particular Parties, including how much methyl bromide may be supplied 

for the exempted critical uses. As required in section 604(d)(6) of the CAA, for each 

exemption period, EPA consults with the United States Department of Agriculture 

(USDA) and other departments and institutions of the Federal government that have 

regulatory authority related to methyl bromide, and provides an opportunity for public 

comment on the amounts and specific uses of methyl bromide that the agency is 

proposing to exempt.

On February 4, 2011, the U.S. Government (USG) submitted the ninth

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

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

2013 critical uses. In February 2011, MBTOC sent questions to the USG concerning 

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

MBTOC in February, 2011. These documents, together with reports by the advisory 

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

amounts in this final rule reflect the analysis contained in those documents.

B. How Does This 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, 
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trading provisions, and recordkeeping and reporting obligations. The preamble to the 

Framework Rule included EPA’s determinations on key issues for the critical use 

exemption program.

Since publishing the Framework Rule, EPA has annually promulgated regulations 

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

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

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

6, 2006), 71 FR 75386 (December 14, 2006), 72 FR 74118 (December 28, 2007), 74 FR 

19878 (April 30, 2009), 75 FR 23167 (May 3, 2010), 76 FR 60737 (September 30, 2011), 

and 77 FR 29218 (May 17, 2012).

Today’s action changes the EPA's approach for determining the amounts of 

Critical Use Allowances (CUAs) to be allocated for critical uses in 2013. A CUA is the 

privilege granted through 40 CFR part 82 to produce or import 1 kg of methyl bromide 

for an approved critical use during the specified control period. A control period is a 

calendar year. See 40 CFR 82.3. The control period at issue in this rule is 2013. These 

allowances expire at the end of the control period and, as explained in the Framework 

Rule, are not bankable from one year to the next. The CUA allocation is subject to the 

trading provisions at 40 CFR 82.12, which are discussed in section V.G. of the preamble 

to the Framework Rule.

Today’s action also removes from the regulatory framework the restriction that 

limits the sale of inventory to critical uses through allocations of Critical Stock 

Allowances (CSA). A CSA was the right granted through 40 CFR part 82 to sell 1 kg of 
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methyl bromide from inventory produced or imported prior to the January 1, 2005, the 

phaseout date for an approved critical use during the specified control period. The 

Framework Rule established provisions governing the sale of pre-phaseout inventories 

for critical uses, including a prohibition on the sale of pre-phaseout inventories for critical 

uses in excess of the amount of CSAs held by the seller. The removal of this prohibition

is discussed in more detail below.

C. Critical Uses

Today’s action amends the table in 40 CFR part 82, subpart A, appendix L to 

reflect the agreed critical use categories identified in Decision XXIII/4. In that Decision, 

taken in November 2011, the Parties to the Protocol agreed “to permit, for the agreed 

critical-use categories for 2013 set forth in table A of the annex to the present decision for 

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

Ex.I/4 to the extent that those conditions are applicable, the levels of production and 

consumption for 2013 set forth in table B of the annex to the present decision which are 

necessary to satisfy critical uses ...” The following uses are those set forth in table A of 

the annex to Decision XXIII/4 for the United States:

 Commodities

 Mills and food processing structures

 Dried cured pork

 Cucurbits

 Eggplant – field

 Nursery stock – fruit, nuts, flowers

 Orchard replants

 Ornamentals

 Peppers – field

 Strawberry – field

 Strawberry runners

 Tomatoes – field

Comment [A3]: Inserting this makes the sentence 

incorrect. 

Deleted: the definition of CSAs and 

Deleted: It also established trading provisions that 

allow CUAs to be converted into CSAs.

Deleted: ese

Deleted: provisions 
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EPA sought comment on the technical analysis contained in the U.S. nomination 

(available for public review in the docket), and information regarding any changes to the 

registration (including cancellations or registrations), use, or efficacy of alternatives that 

have occurred after the 2013 U.S. CUN was forwarded. 

EPA received two comments about the critical use nomination process. One 

commenter stated that the process should be based in sound science, and be transparent, 

fair and objective. The nomination process should meet the critical need for methyl 

bromide from the industries and individuals that apply. The second commenter stated 

there is no meaningful opportunity for an applicant that is not included in the CUN to 

object or challenge the CUN.

EPA agrees with the comment that the nomination process should be based in 

sound science and meet the critical needs of the applicants. EPA also strives to make the 

process transparent, fair, and objective. EPA conducts a rigorous technical assessment of 

the applications and evaluates data and current research to establish an internationally 

defensible basis for the nominations. In doing so the agency works with the State 

Department, USDA, state pesticide agencies, researchers, fumigators and applicants to 

assess whether there are technically or economically feasible alternatives, and whether a

significant market disruption would result from the lack of a CUE.

The U.S. CUN is submitted on behalf of the U.S. government by the Department 

of State to the Parties to the Montreal Protocol. The Department of State has an 

extensive stakeholder engagement process to solicit input on the U.S. CUN. Private 
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parties are encouraged to participate in that process. In the most recent round, EPA has 

worked to further improve the transparency of the nomination process by collaborating 

more closely with the applicants than in previous years. Shortly after receiving the 

applications, EPA informed the applicants of any obvious data gaps and scheduled 

meetings to discuss the needed information. In some instances, EPA followed up with 

additional calls and meetings. As a result of this technical review, EPA may determine 

that an applicant has not sufficiently shown that the regulatory and Montreal Protocol 

criteria for a critical use are met. After submitting the 2015 nomination, EPA held calls 

with all the applicants to discuss the technical basis for the nomination and to show how 

future applications can be strengthened. EPA has posted on its web site, and added to the 

docket, a schedule detailing upcoming deadlines and past interactions with applicants.

In addition, EPA received comment that the agency should clarify what 

constitutes a significant market disruption since the commenter considers the term to be 

vague and subject to various interpretations by EPA. The term “significant market 

disruption” is left to the discretion of each Party to the Protocol to interpret. The agency 

has previously provided its interpretation of the term, and EPA refers readers to the 

preamble for 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 greater detail in those documents, EPA’s interpretation of this term has several 

dimensions, including looking at potential effects on both demand and supply for a 
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commodity, evaluating potential losses at both an individual level and at an aggregate 

level, and evaluating potential losses in both relative and absolute terms.

EPA received comment that all of the uses contained in the nomination be 

authorized as critical uses for 2013. EPA agrees and is not removing any uses, 

commodities or otherwise, that were nominated and approved by the Parties for use in 

2013. EPA did not receive any data that would support removing uses that were 

nominated and approved by the Parties. EPA received one comment that there should be 

no uses of methyl bromide given its effect on the stratospheric ozone layer, and one 

comment that CUE authorization should not impede the adoption of alternatives. EPA 

disagrees that all methyl bromide use should stop and does not believe that the CUE 

authorization for 2013 will impede the continued adoption of methyl bromide 

alternatives. The CUN addresses the need for methyl bromide for the 2013 critical uses, 

which, as described in the nomination chapters found in the docket, are uses for which 

EPA has found there are not technically and economically feasible alternatives. In 

addition, the 2013 critical uses were reviewed by the technical bodies to the Ozone 

Secretariat and authorized by the Parties to the Montreal Protocol. 

EPA also received a comment that the agency should reopen the nominations for 

2013 to account for the withdrawal of iodomethane from the U.S. market, especially if 

the availability of iodomethane was the reason the USG did not nominate certain sectors. 

At this point it is not possible for the USG to reopen nominations for 2013. As described 

in the previous section, in order to provide time for EPA to promulgate a rule authorizing 

critical use exemptions for a particular control period, the USG submits a nomination the 

Deleted: MeBr 

Comment [A4]: Can EPA provide a citation or 

link to this analysis?

These analyses can also be found on the EPA 

website at 

http://www.epa.gov/ozone/mbr/2013_nomination.ht

ml
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January two years prior to the control period at issue. In addition, if the USG had 

submitted a supplemental request for 2013 this January, the Parties would not have been 

able to consider it until November of 2013, which would not provide relief to growers.

EPA is finalizing the lists of approved critical uses and approved critical users as 

proposed. First, as discussed in the proposal, EPA is removing from Appendix L two 

users that did not submit applications and therefore were not included in the U.S. 

nomination. These users are California rose nursery growers and Maryland tomato 

growers. Second, EPA is removing the National Pest Management Association (NPMA) 

food processing as an approved critical user. The NPMA did not initially apply to be a 

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

2013. 

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

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

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

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

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

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

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

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

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

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

request for 2013 methyl bromide use during the open period for 2014 applications. The 

Comment [A5]: Food processing is a critical use 

for 2013. Clarified original text.

Deleted: this purposethe purpose of food 

processing
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USG did not include NPMA’s supplemental request in the 2014 nomination submitted to 

UNEP on January 31, 2012, because EPA has only proposed to revoke the tolerances for 

sulfuryl fluoride and has not taken action in any final rule. U.S. critical use nominations 

are based on final decisions about alternatives. Additionally, the proposed tolerance 

revocation included a staggered implementation scheme, making it unlikely that any 

specific revocation will be effective in 2013. Therefore, EPA is not finalizing NPMA as 

an approved critical user in 2013.

Third, EPA is removing sectors or users that applied for a critical use in 2013 but 

that the United States did not nominate for 2013. 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 significant market disruption would 

occur as a result. As a result of this technical review, the USG determined that certain

sectors or users did not meet the critical use criteria in Decision IX/6, and the USG 

therefore did not include them in the 2013 Critical Use Nomination. EPA notified these 

sectors of their status in July 2011, and those letters are in the public docket for this rule. 

These sectors are: members of the Southeastern Cucurbit Consortium and cucurbit 

growers in Maryland and Delaware; growers in the forest nursery sector (Southern Forest 

Nursery Management Cooperative, Northeastern Forest and Conservation Nursery 

Association, and Michigan seedling growers); members of the Southeastern Pepper 

Consortium; members of the Southeastern Strawberry Consortium and Florida strawberry 

growers; California sweet potato slip growers; members of the Southeastern Tomato 

Comment [A6]: These sentences are a little 

confusing. Was the NPMA supplemental request for 

2013 for methyl bromide? If so, please specify (see 

edits). 

Yes. Accepted suggested edit.

Deleted: have been
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Consortium and Virginia tomato growers. For each of these uses, EPA found that there 

are technically and economically feasible alternatives to methyl bromide. 

Finally, EPA is limiting the CUE for cucurbit, eggplant, pepper, and tomato 

sectors in Georgia to small growers. The EPA review of the available information for 

Georgia indicates that farmers growing fewer than 10 acres of these crops need an 

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

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

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

chloropicrin, and metam). The EPA conducted an economic assessment of small 

growers’ ability to convert their equipment (see revised nomination, dated July 15, in the 

docket). The assessment demonstrates that despite the UGA 3-Way mixture being more 

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

equipment to use the UGA 3-Way mixture at a cost of $3,450 is not affordable for 

growers under four acres, amortized over 10 years at 7% interest (7% is a home equity 

loan rate for this region at the time the nomination was submitted; interest on agricultural 

loans could be lower). However, due to variations in impacts for individual growers and 

uncertainties in the assumptions used in the economic analysis, farms smaller than 10 

acres are reasonably expected to incur negative impacts from having to covert to the 

UGA 3-Way mixture. This analysis can be found in the July 11, 2011, reply to MBTOC 

available in the docket to this rule. Therefore, EPA is limiting the Georgia cucurbit, 

eggplant, pepper, and tomato critical uses to small growers, which EPA defines as 

growers growing fewer than 10 acres. 

Comment [A7]: :Later it is noted that DMDS is 

registered for cucurbit, eggplant, pepper, and tomato. 

Why is this not used instead of 3-Way or MeBr on 

these crops?

Growers will use different alternatives based on the 

specific pest pressures and circumstances of their 

fields. 

Comment [A8]: Has EPA provided this analysis? 

Did EPA’s analysis consider the proportion of small 

growers who currently contract with professional 

applicators to apply the fumigants and the proportion 

of growers who would switch to professional 

application services to avoid the costs of converting 

their equipment? For smaller farms it may be more 

cost effective for growers to use professional 

services. 

This analysis can also be found on the EPA website 

(http://www.epa.gov/ozone/mbr/2013_nomination.ht

ml). EPA found in the analysis that “there are 

currently no commercial fumigation/ applicators in 

Georgia so these applications cannot be done by 

someone else.”
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EPA is repeating the following clarifications made in previous years for ease of 

reference. The “local township limits prohibiting 1,3-dichloropropene” are prohibitions 

on the use of 1,3-dichloropropene products in cases where local township limits on use of 

this alternative have been reached. In addition, “pet food” under subsection B of Food 

Processing refers to food for domesticated dogs and cats. Finally, “rapid fumigation” for 

commodities is when a buyer provides short (two working days or fewer) notification for 

a purchase or there is a short period after harvest in which to fumigate and there is limited 

silo availability for using alternatives. 

EPA received a request from two commenters that the agency confirm that being 

removed from the table of approved critical uses for 2013 does not preclude the use from 

being added back in the future. The Agency reviews every application received each year 

against the CUE criteria. The removal of a user from the list of approved critical uses 

indicates that a determination was made that technically or economically feasible 

alternatives exist. However, the EPA recognizes that circumstances may change, or 

additional information emerge, that could merit including that use in a future nomination. 

Furthermore, EPA recognizes that in 2003 the Parties to the Montreal Protocol 

recognized in Decision ExI.3 that each Party should aim at significantly and 

progressively decreasing its production and consumption of methyl bromide for critical 

uses with the intention of completely phasing out methyl bromide as soon as technically 

and economically feasible alternatives are available.

D. Critical Use Amounts
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Table A of the annex to Decision XXIII/4 lists critical uses agreed to by the 

Parties to the Montreal Protocol. The maximum amount of new production and 

consumption for U.S. critical uses, specified in Table B of Decision XXIII/4, is 562,326 

kg, minus available stocks. This figure is equivalent to 2.2% of the U.S. 1991 methyl 

bromide consumption baseline of 25,528,270 kg.

EPA received three comments supporting the proposal to allocate at least the full 

amount authorized by the Parties. Two of those commenters stated that EPA should 

allocate more than the amount requested in the CUN. One commenter stated that this is 

appropriate since the nomination was based on the continued availability of iodomethane. 

The other commenter stated that the CUN was inadequate and failed to reflect the need 

for methyl bromide as identified in the applications that were filed. Therefore, the 

proposed amount is insufficient to meet the critical needs of U.S. growers. One 

commenter questioned whether it would ever be appropriate for EPA to allocate less than 

the full amount authorized by the Parties.

EPA is not allocating at or above the amount in the CUN. The CUN itself exceeds 

the amount authorized by the Parties. As EPA stated in the proposed rule, EPA views the 

determination of the total allocation, up to the amount authorized by the Parties, as an 

appropriate exercise of discretion. The agency will not increase the quantities in the final 

rule beyond those authorized by the Parties, but may exercise its discretion to allocate 

less. Article 2H(5) of the Montreal Protocol provides that the 2005 methyl bromide 

phaseout shall not apply ‘‘to the extent the Parties decide to permit the level of 

production or consumption that is necessary to satisfy uses agreed by them to be critical 
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uses.’’ Decision XXIII/4 contains the Parties’ critical use authorization for 2013. In this 

rule, EPA is honoring commitments made by the United States in the Montreal Protocol 

context, including Decision XXIII/4. For 2013, EPA is allocating the full amount 

authorized by the Parties.

In the past, EPA has also made reductions to the CUA amount to account for the 

amount specifically authorized for research, on the assumption that research amounts 

would come from inventory. One commenter stated that EPA failed to account for 

research use of methyl bromide in the proposed rule and should return to the previously 

established policy and allocate a separate research purpose allocation. EPA responds that 

the 2013 CUN did not include, and the Parties did not authorize, a separate amount for 

research, as had been done in prior years. As discussed in more detail in the 2011 CUE 

final rule (76 FR 60736, 60743, September 30, 2011), EPA views research as part of the 

nomination for each individual critical use. Therefore, EPA is not making any 

adjustments for research, carryover, or the uptake of alternatives. 

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

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

the accumulation of methyl bromide produced under the exemption.” 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 
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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. 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 doublecounting of carryover amounts, and a double reduction of critical use allowances (CUAs).

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

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

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

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

was due to distributors selling material that was carried over from the prior control 

period. Therefore, EPA is applying the carryover deduction of 0 kg to the new production 

amount. EPA’s calculation of the amount of carryover at the end of 2011 is consistent 

with the method used in previous CUE rules, and with the method agreed to by the 

Parties in Decision XVI/6 for calculating column L of the U.S. Accounting Framework. 

Past U.S. Accounting Frameworks, including the one for 2011, are available in the public 

docket for this rulemaking. 

Uptake of Alternatives Under the existing framework, EPA considers data on the 

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

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

has been registered. When an alternative is withdrawn, EPA will not increase the total 

CUE amount above the amount authorized by the Parties. However, the section on 
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critical stock allowances below discusses how EPA is responding to the withdrawal of 

iodomethane.

Since the USG submitted the 2013 CUN, Dimethyl Disulfide (DMDS) has been 

registered in additional states. In July 2010, EPA registered DMDS to control nematodes, 

weeds, and pathogens in tomatoes, peppers, eggplants, curcurbits, strawberries, 

ornamentals and forest nursery seedlings, and onions. The CUN considered only a limited 

uptake of DMDS in 2013 as only a few states had registered DMDS and it was not 

registered in either California or Florida. EPA received comment that DMDS is now 

registered in twenty-seven states, including Georgia and Florida. The commenter requests 

that EPA reduce the new production/import allocation to reflect the increased 

registrations and to reflect the success that growers have had in transitioning to 

alternatives generally. EPA also received one comment supporting the proposal not to 

make reductions for DMDS in the Southeast. The commenter also stated that even if 

California were to register DMDS, growers would transition cautiously to ensure it works 

for their circumstances.

EPA is not making a reduction to the new production/import allocation based on 

these additional state registrations. As discussed below, 91% of the amount authorized for 

2013 is for critical uses in California, which has not yet registered DMDS. Growers in 

Florida account for less than 3% of the authorized amount. EPA anticipates that the 

uptake of DMDS in Florida will therefore not significantly affect total demand for critical 

use methyl bromide.

Deleted: on 

Deleted: the Southeastern U.S.

Deleted: only 4%

Deleted: the Southeast

Comment [A9]: This conclusion does not seem 

adequately supported for two reasons: 4% of 

national MeBr use is a significant quantity and EPA 

considered MeBr use on certain crops in the 

southeast to be significant enough to conduct an 

economic analysis (see p.15). 

The change in registration status of DMDS was only 

in Florida (GA already registered it when the CUN 

was submitted). This is equivalent to 2.8% of the 

authorized amount.
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EPA does not believe that the progress California and Florida strawberry growers

have made in transitioning to alternatives means, as one commenter suggests, that the 

EPA should reduce the allocation amounts in the 2013 rule. EPA recognizes that 

strawberry growers are successfully transitioning to alternatives, and the CUE allocation 

for strawberries has been declining as that transition has occurred. EPA has considered

the transition made to date, and the ability of strawberry growers to further transition,

when developing the nomination. Transition rates for alternatives have already been 

applied for authorized 2013 critical use amounts through the nomination and 

authorization process.

One commenter stated that the proposed rule did not take into account the 

proposed tolerance revocation of sulfuryl fluoride. As EPA has stated in prior rules, this 

allocation rule is based on the current status of alternatives and is limited to 2013. The 

proposed tolerance revocation includes a staggered implementation scheme so that it is 

unlikely that any specific revocation will be effective as soon as 2013 (76 FR 3447). 

Therefore, EPA has not based the allocation amounts for 2013 on any anticipated impacts 

of that proposal on methyl bromide use.

In summary, EPA is exempting 562,326 kg of new production and import of 

methyl bromide for critical uses in 2013. EPA is allocating allowances to the four 

companies that hold baseline allowances. The allocation, as in previous years, is in 

proportion to those baseline amounts, as shown in the table at 40 CFR 82.8(c)(1). 

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

permit, authorize or allocate quantities of methyl bromide for critical uses as listed in 

Deleted: other 
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table A of the annex to the present decision.” This is similar to language in prior 

Decisions authorizing critical uses. These Decisions call on Parties to endeavor to 

allocate critical use methyl bromide on a sector basis. The Framework Rule proposed 

several options for allocating critical use allowances, including a sector-by-sector 

approach. The agency evaluated various options based on their economic, environmental, 

and practical effects. After receiving comments, EPA determined that a lump-sum, or 

universal, allocation, modified to include distinct caps for pre-plant and post-harvest uses, 

was the most efficient and least burdensome approach that would achieve the desired 

environmental results, and that a sector-by-sector approach would pose significant 

administrative and practical difficulties. EPA received one comment supporting the 

continued use of the universal allocation approach. For the reasons discussed in the 

preamble to the 2009 CUE rule (74 FR 19894), the agency believes that the approach 

adopted in the Framework Rule is the most appropriate approach and that it is likely the 

actual critical use will closely follow the sector breakout listed in the Parties’ decisions.

E. Critical Stock Allowances

Decision XXIII/4 indicates that the United States’ permitted level of production 

and consumption for 2013 is 562,326 kg minus “available stocks.”As part of this 

rulemaking, EPA considered what amount, if any, of existing stocks may be available to 

critical users during 2013. 

1. Determining the Level of Available Stocks

Individual Parties have the ability to determine their level of available stocks. The 

Parties to the Protocol recognized in their Decisions that the amount of available stocks 

Comment [A10]: Has this been the case in 

previous years? Can EPA provide some summary 

retrospective information on how well the critical 

use followed the estimated needs of the sectors?

EPA’s ICR authority no longer extends to sector 

specific data.
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may differ from the total amount of existing stocks. Decision XXIII/4 states that 

“production and consumption of methyl bromide for critical uses should be permitted 

only if methyl bromide is not available in sufficient quantity and quality from existing 

stocks...” In addition, earlier Decisions refer to the use of “quantities of methyl bromide 

from stocks that the Party has recognized to be available.” Decision XXIII/4 reinforces 

this concept by including the phrase “minus available stocks” as a footnote to the United 

States’ authorized level of production and consumption in Table B. 

Section 604(d)(6) of the CAA does not require EPA to adjust the amount of new 

production and import to reflect the availability of stocks; however, as explained in 

previous rulemakings, making such an adjustment is a reasonable exercise of EPA’s 

discretion under this provision. Pre-phaseout inventory, or “stocks,” refers to methyl 

bromide that was produced using consumption allowances prior to the 2005 phaseout 

date under the Clean Air Act and the Montreal Protocol. It does not include methyl 

bromide that was produced after January 1, 2005, under the critical use exemption and 

carried over into subsequent years. Nor does it include methyl bromide produced 1) under 

the quarantine and preshipment (QPS) exemption, 2) with Article 5 allowances to meet 

the basic domestic needs of Article 5 countries, or 3) for feedstock or transformation 

purposes. 

The aggregate amount of pre-phaseout methyl bromide reported as being in 

inventory at the end of 2012 is 627,066 kg. As explained in the 2008 CUE Rule, EPA

intends to continue releasing aggregate methyl bromide inventory data reported to the 

agency under the reporting requirements at 40 CFR 82.13 at the end of each control 
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period. If the number of competitors in the industry were to decline appreciably, EPA 

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

information and whether to release the aggregate without notice. EPA did not propose to 

change the treatment of submitted information but welcomes information concerning the 

composition of the industry. The aggregate information for 2003 through 2013 is

available in the docket.

Consistent with EPA’s past practice, and our commitments to the Parties, EPA 

considered the level of “available stocks” that may be allocated in this rulemaking. EPA 

requested comments on two approaches for determining how many CSAs to allocate.

Under the first approach, the agency would calculate “available stocks” as either 5% or 

0% of the existing inventory, as was reported to EPA on January 1, 2012. The second 

approach would be to continue using the existing framework of estimating drawdown and 

a supply chain factor. EPA is finalizing the first approach but finds that no stocks are 

available to meet the critical demand for 2013. Therefore, EPA is not issuing CSAs in 

this final rule. 

In this final rule, EPA is rejecting the older approach of using the existing 

framework to estimate drawdown. In the 2012 Final Rule, EPA recognized that our

"estimates [of available stocks] have become increasingly inexact in characterizing actual 

drawdown of pre-phaseout inventory, as the amounts in inventory have declined over 

time. EPA intends to consider the adequacy of using this formula to assess ‘available 

stocks’ in a future action.” 
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Initially, the drawdown estimate was a simple linear model based on past years’ 

rates. EPA modified the approach in the 2009 CUE Rule when it became apparent that 

the inventory was decreasing exponentially rather than linearly. EPA noted that the 

slowing rate of drawdown was based mostly on the business decisions of the companies 

that hold pre-phaseout inventory, and included aspects that are difficult for EPA to know 

or quantify, such as honoring long-term relationships with non-CUE customers or 

holding inventory in response to price fluctuations. To refine the analysis in subsequent 

rules EPA separately analyzed the use of inventory on critical uses, for which there are a 

set number of allowances, and non-critical uses, for which there are not. 

Despite increased specificity, precise estimates still proved elusive. In successive 

years, EPA substantially overestimated inventory drawdown. In the 2012 Rule, EPA 

estimated a drawdown of 1,110,633 kg, when the actual drawdown was half that amount, 

or 556,794 kg. The results of the methodology using the updated data were sufficiently 

different that EPA considered providing additional notice and the opportunity to 

comment to incorporate them into the final allocation rule. EPA is concerned that as the 

total amount of both the U.S. authorization and the pre-phaseout stocks become smaller, 

efforts to perfect EPA estimates in this area will delay needed rulemaking. The fact that 

the agency’s projections consistently over-estimate the amount of inventory that will be 

drawn down is evidence that the approach substantially over-estimates the availability of 

pre-phaseout stocks. 

EPA believes constraints on the ability of critical users to acquire and use stocks

may become worse due to a recent change in the geographic distribution of critical users. 
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In the past, EPA has considered all pre-phaseout inventory to be available to all users, 

regardless of location. This assumption, as discussed in the 2009 CUE rule (74 FR 19887, 

April 30, 2009), was based on the fact that inventory is held in California and the 

Southeast, the two primary critical use growing regions, as well as other locations around 

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

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

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

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

respectively.1 EPA believes that inventory held in the Southeast may not be equally 

available to critical users in California. Unlike newly produced or imported material,

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

distributors. EPA received comment that the first priority of these distributors is to 

maintain the supply and service obligations they have to their customers within the 

geographic areas where they operate.

EPA proposed to allocate CSAs equal to 5% of the January 1, 2012, reported 

inventory, which is equal to 62,444 kg. EPA based this percentage on historic patterns of 

use. Since 2006, the amount of prior year inventory used through the expenditure of 

CSAs has ranged from 8% to 26%. EPA proposed an amount less than the historic pattern 

 

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

believes that disaggregating the inventory data by geographic area could potentially 

reveal CBI. EPA solicited comment on this issue but did not propose to release data 

showing how much inventory is located in or near California. However, even in the 

absence of specific inventory data broken down by region, EPA believes that the fact that 

over 90% of critical use is in California is relevant to judging the availability of existing 

stocks.
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in an effort to ensure that the amount allocated for 2013 would be available to critical 

users in that year.

EPA also solicited comment on allocating 0 kg from stocks. EPA was particularly 

interested in comments from critical stock allowance holders who would be barred under 

the existing framework from selling inventory to critical users in 2013 absent an 

allocation of CSAs. EPA stated it was interested in learning whether an allocation at or 

close to 0 kg would prevent the drawdown of stocks or prevent the fulfillment of 

contracts or commitments to sell pre-phaseout inventory in 2013. EPA also sought 

comment on whether the restriction at 40 CFR 82.4(p) that limits the sale of inventory to 

critical uses through the CSA allocation should be lifted.

One commenter agreed that the prior calculation was unacceptably time 

consuming, unwieldy and prone to inaccuracies. This commenter stated that, especially 

with the withdrawal of iodomethane, EPA should authorize the full amount of critical use 

methyl bromide authorized by the Parties, and that even that amount may be insufficient 

to meet the needs of growers. However, this commenter also stated that a limited amount 

of CSAs is still appropriate to provide registrants and distributors flexibility to meet the 

needs of all growers. Therefore, this commenter supported the proposal to allocate 5% of 

the prior year’s starting inventory. 

One commenter stated that the full amount for critical uses should come from new 

production. This commenter points out that the private parties holding stocks are the only 

ones who can decide to make them available, and states that it would be unreasonable to 

reduce the amount of new production due to those stocks. Another commenter stated that 
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it was important for existing stocks to be available for drawdown, since otherwise stocks 

will never be used.2

EPA has considered all of these comments, and recent developments related to the 

critical use of methyl bromide, and has determined that it will allocate the full amount of 

the critical use authorization to new production, but also lift the prohibition on selling 

stocks of methyl bromide for critical uses without a CSA.

EPA intends for the entire allocation of critical use allowances and critical stock 

allowances to be expended to meet each year’s critical demand. However, the total 

allocation of critical stock allowances has never been used. In fact, typically one third to 

one half of the critical stock allowances allocated each year remains unexpended. EPA 

believes there is demand for methyl bromide given the fact that there was no carryover in 

2010 and 2011. This means that all the methyl bromide that was produced or imported for 

critical uses for those years was used. However, 40% of the 2010 and 30% of the 2011 

critical stock allowance allocations were not used. 

Consistent with these data, comments to this and past allocation rules state that 

the existing inventory is not actually available to users because of reductions in the 

number of distributors and market decisions by distributors to sell inventory to current 

customers or hold inventory for future use. The recent concentration of critical uses in 

California may also mean that stocks in the Southeast are even more unavailable as a 

 

2 The commenter also stated that the stocks of methyl bromide should be available to 

non-critical uses. This commenter disagrees with EPA’s Reregistration Eligibility 

Decision that resulted in the removal of various non-exempt uses from the methyl 

bromide product labels. This comment is beyond the scope of this rulemaking.
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practical matter for critical users. The data show that inventory is continually less 

“available” than EPA estimated. At the same time, meeting the demand for critical use 

methyl bromide is especially important for 2013 due to the withdrawal of iodomethane. 

In light of these circumstances, including the facts that the agency is unable to require the 

sale of inventory to meet the critical demand and there is evidence that inventory will not 

be sold to meet that demand, EPA is determining that there are not stocks available to be 

allocated for 2013. Therefore, EPA is allocating 0 CSAs for 2013. 

2. Amending the Critical Stock Allowance Framework

For the reasons discussed above, EPA believes, as a practical matter, existing 

stocks of methyl bromide are not available for critical users in 2013. However, at the 

same time, EPA agrees that it would not be appropriate to completely prohibit use of 

existing stocks, since EPA does not believe that stocks should be held indefinitely. EPA 

solicited comment on whether the prohibition on selling stocks of MeBr for a critical use 

without a CSA should be lifted. After consideration of comments, EPA is lifting the 

prohibition.

One provision in the framework rule, 40 CFR 82.4(p), limits the amount of prephaseout methyl bromide that can be sold for critical uses to the amount of critical stock 

allowances held by that distributor. EPA developed the concept of critical stock 

allowances in the Framework Rule to meet the requirement of Decision Ex I/3(3). That 

Decision states that “a Party using stocks under paragraph 2 above shall prohibit the use 

of stocks [for critical uses]... when amounts from stocks combined with allowable 

Deleted: and making some necessary conforming 

changes to Part 82

Deleted: ,

Deleted: which authorized critical uses for 2005, 
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production and consumption for critical uses exceed the total level for that Party set forth 

in annex II A to the present report.’’ 

As discussed in the Framework Rule, EPA read Decision Ex I/3(3) as calling for

limits on the use of stocks for approved critical uses in order to receive the benefit of new 

production and import in that Decision for 2005. However, Decision Ex I/3(3) was only 

applicable to the 2005 control period. Subsequent Decisions by the Parties authorizing 

critical uses and new production and import amounts for later control periods did not 

contain similar language. For the reasons discussed herein, EPA no longer believes that 

the restrictions established by EPA to meet the requirements of Decision Ex I/3(3) remain 

appropriate. EPA believes this approach is consistent with Decision XXIII/4 which 

authorizes an amount of new production and import of methyl bromide for 2013 but does 

not call for limits on the total use of methyl bromide for critical uses.

Several changes relevant to the drawdown of the pre-phaseout inventory have 

occurred since 2004. When the critical use exemption was being established by the 

Parties, the United States made assurances that it would responsibly manage the 

inventory. At that time, the inventory was 16,422 MT which is 26 times greater than the 

level of inventory today. The United States and other Parties were concerned that this 

large amount of inventory could overwhelm the critical use exemption. EPA therefore

limited the use of inventory on critical uses through the issuance of critical stock 

allowances. 

Since that time, EPA has taken further steps to restrict the use of stocks through 

FIFRA labeling changes. Under the reregistration decision for methyl bromide, EPA Deleted: Together these two actions have the 

potential to significantly limit the use of inventory. ¶
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removed all but seven non-critical “Group II uses” from the pre-plant methyl bromide 

labels. Four of those seven uses were cancelled as of December 31, 2012, two will be 

removed at the end of 2013, and the last will be removed at the end of 2014. As these 

Group II uses are removed from product labels, and as the number of critical uses 

decreases, the demand for pre-phaseout inventory will continue to decline. The 

decreasing number of uses and geographical limitations on critical use discussed above

may also lead to a slowing in the rate of inventory drawdown.

Together these two actions have the potential to significantly limit the use of 

inventory. However it is clear that the concerns expressed through Decision Ex I/3(3), to

restrict the use of stocks, has also changed. Decision XXII/6, which authorized critical 

uses for 2012, stressed that “parties should reduce their stocks of methyl bromide retained 

for employment in critical-use exemptions to a minimum in as short a time period as 

possible.” EPA believes that ending the restriction on the use of stocks for critical uses is 

appropriate to avoid a situation, either now or in the future, where the inventory becomes 

practically inaccessible. If this occurs, there will be few uses of inventory and stocks 

could remain indefinitely.

To implement this change EPA is removing the restrictions at § 82.4(p)(ii) and 

(iii). In addition, EPA is removing the reference to CSAs from the definition of “critical 

use methyl bromide.” EPA believes additional conforming changes may be appropriate 

but will address those changes in a future rulemaking.

EPA also requested comment on potential mechanisms within the Clean Air Act 

or other statutory authorities to respond to the withdrawal of iodomethane, and other 

Deleted: making some necessary conforming 

changes to 40 CFR Part 82, which follow from 

removing those restrictions. These changes include 

the following. EPA is removing the definitions of 

“critical stock allowance”, “critical stock allowance 

holder”, and “unexpended critical stock allowance” 

from § 82.3. The final rule also removes 
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unforeseen or emergency situations. EPA received three comments requesting that the 

agency undertake a rulemaking to implement Decision IX/7 regarding emergency uses of 

methyl bromide. One commenter noted that EPA announced in 2000 that it would draft a 

rule for emergency uses, which would be separate from its authority to grant emergency 

or crisis exemptions under FIFRA section 18. The commenter noted that clarification of 

the process for emergency uses, whether through section 18 or through additional 

rulemaking, is warranted since previous section 18 exemptions had been granted for 

methyl bromide prior to the 2005 phase-out. 

As EPA noted in the notice of proposed rulemaking and elsewhere, this rule 

implements the Clean Air Act’s requirement to phase out consumption and production of 

methyl bromide, subject to the critical use exemption. Nothing in this rule is intended to 

derogate from FIFRA or 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.

The commenter went on to note that Australia and Canada have also utilized the 

Decision IX/7 emergency exemption provision of the Montreal Protocol. Another

commenter notes that unforeseen shortages of methyl bromide alternatives could have the 

same effect as other emergency conditions that may warrant use exemptions.

This spring EPA held discussions with USDA and the Department of State on 

whether emergency situations may arise that warrant the use of methyl bromide and other 

tools that could potentially address immediate and unforeseen needs for methyl bromide.

F. The Criteria in Decisions IX/6 and Ex. I/4
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Paragraphs 1 and 4 of Decision XXIII/4 request Parties to ensure that the 

conditions or criteria listed in Decisions Ex. I/4 and IX/6, paragraph 1, are applied to 

exempted critical uses for the 2013 control period. A discussion of the agency’s 

application of the criteria in paragraph 1 of Decision IX/6 appears in Section II of this 

preamble. EPA solicited comments on the technical and economic basis for determining 

that the uses listed in this rule meet the criteria of the critical use exemption. The CUNs 

detail how each proposed critical use meets the criteria listed in paragraph 1 of Decision 

IX/6, apart from the criterion located at (b)(ii), as well as the criteria in paragraphs 5 and 

6 of Decision Ex. I/4. 

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

of methyl bromide, is addressed in section II.E. of this preamble. The agency has 

previously provided its interpretation of the criterion in Decision IX/6(1)(a)(i) regarding 

the presence of significant market disruption in the absence of an exemption.

The remaining considerations are addressed 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 

bromide where technically and economically feasible; the development of research and 

transition plans; and the requests in Decision Ex. I/4(5) and (6) that Parties consider and 

implement MBTOC recommendations, where feasible, on reductions in the critical use of 

methyl bromide and include information on the methodology they use to determine 

economic feasibility.
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Some of these criteria are evaluated in other documents as well. For example, the 

United States has considered the adoption of alternatives and research into methyl 

bromide alternatives, criterion (1)(b)(iii) in Decision IX/6, in the development of the 

National Management Strategy submitted to the Ozone Secretariat in December 2005, 

updated in October 2009. The National Management Strategy addresses all of the aims 

specified in Decision Ex.I/4(3) to the extent feasible and is available in the docket for this 

rulemaking.

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

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

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

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

May 3, 2010), research is a key element of the critical use process. Research on the crops 

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

While researchers may continue to use newly produced material for field, post-harvest, 

and emission minimization studies requiring the use of methyl bromide, EPA encourages 

researchers to use pre-phaseout inventory. EPA also encourages distributors to make 

inventory available to researchers, to promote the continuing effort to assist growers to 

transition critical use crops to alternatives.

G. Emissions Minimization

Previous decisions have stated that critical users shall employ emission 

minimization techniques such as virtually impermeable films, barrier film technologies, 

deep shank injection and/or other techniques that promote environmental protection, 
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whenever technically and economically feasible. EPA developed a comprehensive 

strategy for risk mitigation through the 2006 Reregistration Eligibility Decision (RED) 

for methyl bromide, which is implemented through restrictions on how methyl bromide 

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

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

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

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

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

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

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

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

where such tarps are allowed.

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

Agricultural Research Service (USDA-ARS) and the National Institute for Food and 

Agriculture (USDA-NIFA) to promote emission reduction techniques. The federal 

government has invested substantial resources into best practices for methyl bromide use, 

including emission reduction practices. The Cooperative Extension System, which 

receives some support from USDA-NIFA provides locally appropriate and projectfocused 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/programs/programs.htm?NP_CODE=308

and http://www.csrees.usda.gov/fo/methylbromideicgp.cfm. 

Comment [A11]: Defer to the technical experts, 

but what about strawberries in California? I was 

under the impression that use of tarps with methyl 

bromide was only recently permitted in CA. 

Fumigations of methyl bromide must be tarped. CA 

restricts the high barrier tarps, not low permeable 

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

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

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

techniques to inform EPA of their experiences and to provide such information with their 

critical use applications.

III. Statutory and Executive Order Reviews

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

Improving Regulation and Regulatory Review

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this final

rule is a “significant regulatory action” because it was deemed to raise novel legal or 

policy issues. Accordingly, EPA submitted this action to the Office of Management and 

Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011) and any changes made in response to interagency recommendations

have been documented in the docket for this action.

B. Paperwork Reduction Act

This action does not impose any new information collection burden. The 

application, recordkeeping, and reporting requirements have already been established 

under previous critical use exemption rulemakings and this action does not add any new 

requirements. The Office of Management and Budget (OMB) has previously approved 

the information collection requirements contained in the existing regulations at 40 CFR 

part 82 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
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has assigned OMB control number 2060-0482. The OMB control numbers for EPA's 

regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

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

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

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

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

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

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

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

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

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

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

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

dominant in its field.

Category NAICS code SIC code NAICS Small business 

size standard (in 

number of employees 

or millions of dollars)

Agricultural 

production

1112- Vegetable and 

Melon farming

0171- Berry Crops $0.75 million

1113- Fruit and Nut 

Tree Farming

0172- Grapes

1114- Greenhouse, 

Nursery, and 

Floriculture Production

0173- Tree Nuts

0175- Deciduous Tree Fruits 

(except apple orchards and 

farms)

0179- Fruit and Tree Nuts, NEC

0181- Ornamental Floriculture 

and Nursery Products
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0831- Forest Nurseries and 

Gathering of Forest Products

Storage Uses 115114- Postharvest 

Crop activities (except 

Cotton Ginning)

$7 million

311211- Flour Milling 2041- Flour and Other Grain 

Mill Products

500 employees

311212- Rice Milling 2044- Rice Milling 500 employees 

493110- General 

Warehousing and 

Storage

4225- General Warehousing and 

Storage

$25.5 million

493130- Farm Product 

Warehousing and 

Storage

4221- Farm Product 

Warehousing and Storage

$25.5 million

Distributors and 

Applicators

115112- Soil 

Preparation, Planting 

and Cultivating

0721- Crop Planting, Cultivation, 

and Protection

$7 million

Producers and 

Importers

325320- Pesticide and 

Other Agricultural 

Chemical 

Manufacturing

2879- Pesticides and Agricultural 

Chemicals, NEC

500 employees

Agricultural producers of minor crops and entities that store agricultural 

commodities are categories of affected entities that contain small entities. This rule only 

affects entities that applied to EPA for an exemption to the phaseout of methyl bromide. 

In most cases, EPA received aggregated requests for exemptions from industry consortia. 

On the exemption application, EPA asked consortia to describe the number and size 

distribution of entities their application covered. EPA estimated that 3,218 entities 

petitioned EPA for an exemption for the 2005 control period. EPA revised this estimate 

in 2011 down to 1,800 end users of critical use methyl bromide. EPA believes that the 

number continues to decline as growers cease applying for critical uses. Since many 

applicants did not provide information on the distribution of sizes of entities covered in 

their applications, EPA estimated that, based on the above definition, between one-fourth 
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and one-third of the entities may be small businesses. In addition, other categories of 

affected entities do not contain small businesses based on the above description.

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

this action will not have a significant economic impact on a substantial number of small 

entities. In determining whether a rule has a significant economic impact on a substantial 

number of small entities, the impact of concern is any significant adverse economic 

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

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

economic impact of the proposed rule on small entities.” (5 U.S.C. §§ 603- 604). Thus, 

an agency may certify that a rule will not have a significant economic impact on a 

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

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

rule exempts methyl bromide for approved critical uses after the phaseout date of January 

1, 2005, this action confers a benefit to users of methyl bromide. EPA estimates in the 

Regulatory Impact Assessment found in the docket to this rule that the reduced costs 

resulting from the de-regulatory creation of the exemption are approximately $22 million 

to $31 million on an annual basis (using a 3% or 7% discount rate respectively). We have 

therefore concluded that this rule would relieve regulatory burden for all small entities.

D. Unfunded Mandates Reform Act

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

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

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

an exemption for the manufacture and use of a phased out compound and would not 

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

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

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

that might significantly or uniquely affect small governments. 

E. Executive Order 13132: Federalism

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

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

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

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

producers, suppliers, importers, and exporters and users of methyl bromide. Thus, 

Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132, 

and consistent with EPA policy to promote communications between EPA and State and 

local governments, EPA specifically solicited comment on this action from State and 

local officials.

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

Governments 

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

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

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

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

from tribal officials.

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

Safety Risks

This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is 

not economically significant as defined in EO 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 rule 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.

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

or Use

This rule is not a “significant energy action” as defined in Executive Order 13211, 

“Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, 

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

adverse effect on the supply, distribution, or use of energy. This rule does not pertain to 

any segment of the energy production economy nor does it regulate any manner of energy 

use. Therefore, we have concluded that this rule is not likely to have any adverse energy 

effects.

I. National Technology Transfer and Advancement Act

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

(“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use 
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voluntary consensus standards in its regulatory activities unless to do so would be 

inconsistent with applicable law or otherwise impractical. Voluntary consensus standards 

are technical standards (e.g., materials specifications, test methods, sampling procedures, 

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

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

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

rulemaking does not involve technical standards. Therefore, EPA did not consider the use 

of any voluntary consensus standards.

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

Populations and Low-Income Populations

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

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

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

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

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

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

EPA has determined that this rule does not have disproportionately high and 

adverse human health or environmental effects on minority or low-income populations, 

because it affects the level of environmental protection equally for all affected 

populations without having any disproportionately high and adverse human health or 

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

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

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a 

rule may take effect, the agency promulgating the rule must submit a rule report, which 

includes a copy of the rule, to each House of the Congress and to the Comptroller 

General of the United States. EPA will submit a report containing this rule and other 

required information to the U.S. Senate, the U.S. House of Representatives, and the 

Comptroller General of the United States prior to publication of the rule in the Federal 

Register. A Major rule cannot take effect until 60 days after it is published in the Federal

Register. This action not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be 

effective [Insert date of publication].

List of Subjects in 40 CFR Part 82

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

DATED: ____________________

______________________________________________

Bob Perciasepe,

Acting Administrator

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

Phaseout of Methyl Bromide (Page 43 of 47)
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For the reasons stated in the preamble, 40 CFR Part 82 is amended as follows:

PART 82- PROTECTION OF STRATOSPHERIC OZONE

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

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

2. Section 82.3 is amended as follows:

revising the definition of Critical use methyl bromide to read: “Critical use methyl 

bromide means the class I, Group VI controlled substance produced or imported through 

expending a critical use allowance or that portion of inventory produced or imported 

prior to the January 1, 2005 phaseout date that is sold only for approved critical uses.”

* * * * *

3. Section 82.4 is amended by revising paragraph (p)(1) to read as follows:

§ 82.4 Prohibitions for Class I Controlled Substances

* * * * *

(p) * * *

(1) No person shall sell critical use methyl bromide without first receiving a certification 

from the purchaser that the quantity purchased will be sold or used solely for an approved 

critical use. Every kilogram of critical use methyl bromide sold without first obtaining 

such certification constitutes a separate violation of this subpart.

* * * * *

4. Section 82.8 is amended as follows:

a. revising paragraph (c)(1);

b. revising the table in paragraph (c)(1);
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c. removing paragraph (c)(2).

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

* * * * *

(c) Effective January 1, 2005, critical use allowances are apportioned as set forth in 

paragraph (c)(1) of this section for the exempted production and import of class I, Group 

VI controlled substances specifically for those approved critical uses listed in appendix L 

to this subpart for the applicable control period. Every kilogram of production and import 

in excess of the total number and type of unexpended critical use allowances held for a 

particular type of use constitutes a separate violation of this subpart.

(1) * * * 

Company 2013 Critical use allowances 

for pre-plant uses* 

(kilograms)

2013 Critical use 

allowances for postharvest uses* (kilograms)

Great Lakes Chemical 

Corp.

A Chemtura Company

287,633 16,145

Albemarle Corp. 118,281 6,639

ICL-IP America 65,365 3,669

TriCal, Inc. 2,035 114

Total** 473,315 26,567

* For production or import of Class I, Group VI controlled substance exclusively for the 

Pre-Plant or Post-Harvest uses specified in appendix L to this subpart.

** Due to rounding, numbers do not add exactly.

(2) [Reserved]

5. Appendix L to Subpart A is revised to read as follows:
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APPENDIX L TO SUBPART A OF PART 82 – APPROVED CRITICAL USES 

AND LIMITING CRITICAL CONDITIONS FOR THOSE USES FOR THE 2013 

CONTROL PERIOD 

Column A Column B Column C

Approved 

Critical Uses

Approved Critical User and Location 

of Use

Limiting Critical Conditions

that exist, or that the approved critical user reasonably 

expects could arise without methyl bromide fumigation:

PRE-PLANT USES

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

Moderate to severe soilborne disease infestation 

Moderate to severe root knot nematode infestation

Eggplant (a) Florida growers Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe soilborne disease infestation

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation

(b) Georgia growers on fewer than 10 

acres

Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe nematode infestation

Moderate to severe pythium collar, crown and root rot

Moderate to severe southern blight infestation

Restrictions on alternatives due to karst topographical 

features

Nursery Stock 

(Fruit, Nut, 

Flower)

Members of the California Association 

of Nursery and Garden Centers 

representing Deciduous Tree Fruit 

Growers

Moderate to severe nematode infestation

Medium to heavy clay soils

Local township limits prohibiting 1,3-dichloropropene

Orchard 

Replant

California stone fruit, table and raisin 

grape, wine grape, walnut, and almond 

growers

Moderate to severe nematode infestation

Moderate to severe soilborne disease infestation

Replanted orchard soils to prevent orchard replant disease

Medium to heavy soils

Local township limits prohibiting 1,3-dichloropropene

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

Moderate to severe nematode infestation

Local township limits prohibiting 1,3-dichloropropene

(b) Florida growers Moderate to severe weed infestation

Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation

Peppers (a) Florida growers Moderate to severe yellow or purple nutsedge infestation

Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation
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(b) Georgia growers on fewer than 10 

acres

Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe nematode infestation, or moderate to 

severe pythium root and collar rots

Moderate to severe southern blight infestation, crown or 

root rot

Restrictions on alternatives due to karst topographical 

features

Strawberry 

Fruit

California growers Moderate to severe black root rot or crown rot

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe nematode infestation

Local township limits prohibiting 1,3-dichloropropene

Time to transition to an alternative

Strawberry 

Nurseries

California growers Moderate to severe soilborne disease infestation

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe nematode infestation

Tomatoes (a) Florida growers Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation 

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation

(b) Georgia growers on fewer than 10 

acres

Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation 

Restrictions on alternatives due to karst topographical 

features

POST-HARVEST USES

Food 

Processing

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

members of the USA Rice Millers 

Association

Moderate to severe beetle, weevil, or moth infestation

Presence of sensitive electronic equipment subject to 

corrosion

Time to transition to an alternative

(b) Pet food manufacturing facilities in 

the U.S. who are members of the Pet 

Food Institute

Moderate to severe beetle, moth, or cockroach infestation

Presence of sensitive electronic equipment subject to 

corrosion

Time to transition to an alternative

(c) Members of the North American 

Millers’ Association in the U.S.

Moderate to severe beetle infestation

Presence of sensitive electronic equipment subject to 

corrosion

Time to transition to an alternative

Commodities California entities storing walnuts, 

dried plums, figs, raisins, and dates (in 

Riverside county only) in California.

Rapid fumigation required to meet a critical market 

window, such as during the holiday season

Dry Cured 

Pork Products

Members of the National Country 

Ham Association and the Association 

of Meat Processors, Nahunta Pork 

Center (North Carolina), and 

Gwaltney and Smithfield Inc.

Red legged ham beetle infestation

Cheese/ham skipper infestation

Dermested beetle infestation

Ham mite infestation