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[Federal Register Volume 79, Number 45 (Friday, March 7, 2014)]
[Proposed Rules]
[Pages 13006-13017]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-04882]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2014-0065; FRL-9903-64-OAR]
RIN 2060-AR80

Protection of Stratospheric Ozone: The 2014 and 2015 Critical Use 
Exemption from the Phaseout of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing uses 
that

[[Page 13007]]

qualify for the critical use exemption (CUE) and the amount of methyl 
bromide that may be produced or imported for those uses for both the 
2014 and 2015 control periods. EPA is proposing this action under the 
authority of the Clean Air Act to reflect consensus decisions taken by 
the Parties to the Montreal Protocol on Substances that Deplete the 
Ozone Layer at the Twenty-Fourth and Twenty-Fifth Meetings of the 
Parties. EPA is also proposing to amend the regulatory framework to 
remove provisions related to sale of pre-phaseout inventory for 
critical uses. EPA is seeking comment on the list of critical uses, on 
EPA's determination of the specific amounts of methyl bromide that may 
be produced and imported for those uses, and on the amendments to the 
regulatory framework.

DATES: Comments must be submitted by April 21, 2014. Any party 
requesting a public hearing must notify the contact person listed below 
by 5 p.m. Eastern Standard Time on March 12, 2014. If a hearing is 
requested it will be held on March 24, 2014. EPA will post information 
regarding a hearing, if one is requested, on the Ozone Protection Web 
site www.epa.gov/ozone/strathome.html. Persons interested in attending 
a public hearing should consult with the contact person below regarding 
the location and time of the hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2014-0065, by one of the following methods:
    www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: a-and-r-Docket@epa.gov.
     Fax: (202) 566-9744.
     Phone: (202) 566-1742.
     U.S. Mail: Docket EPA-HQ-OAR-2014-0065, 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-2014-0065, EPA 
Docket Center--Public Reading Room, EPA West Building, Room 3334, 1301 
Constitution Avenue NW., Washington, DC 20004. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2014-0065. 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 email. The 
www.regulations.gov Web site 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 email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed on the 
www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at the Air and Radiation Docket, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
Air and Radiation Docket is (202) 566-1742.

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

SUPPLEMENTARY INFORMATION: This proposed rule concerns Clean Air Act 
(CAA) restrictions on the consumption, production, and use of methyl 
bromide (a Class I, Group VI controlled substance) for critical uses 
during calendar years 2014 and 2015. Under the Clean Air Act, methyl 
bromide consumption (consumption is defined under section 601 of the 
CAA as production plus imports minus exports) and production were 
phased out on January 1, 2005, apart from allowable exemptions, such as 
the critical use and the quarantine and preshipment (QPS) exemptions. 
With this action, EPA is proposing and seeking comment on the uses that 
will qualify for the critical use exemption as well as specific amounts 
of methyl bromide that may be produced and imported for proposed 
critical uses for the 2014 and 2015 control periods. EPA also seeks 
comment on the amendments to the regulatory framework to remove 
provisions related to sale of pre-phaseout inventory for critical uses.

Table of Contents

I. General Information
    A. Regulated Entities
    B. What Should I Consider When Preparing My Comments?
II. What Is Methyl Bromide?
III. What Is the Background to the Phaseout Regulations for Ozone-
Depleting Substances?
IV. What Is the Legal Authority for Exempting the Production and 
Import of Methyl Bromide for Critical Uses Authorized by the Parties 
to the Montreal Protocol?
V. What Is the Critical Use Exemption Process?
    A. A. Background of the Process
    B. How Does This Proposed Rule Relate to Previous Critical Use 
Exemption Rules?
    C. Proposed Critical Uses
    D. Proposed Critical Use Amounts
    E. Amending the Critical Stock Allowance Framework
    F. The Criteria in Decisions IX/6 and Ex. I/4
    G. Emissions Minimization
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review

[[Page 13008]]

    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. Regulated Entities

    Entities 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 2014 and 2015 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 proposed action. To determine whether your 
facility, company, business, or organization could be regulated by this 
proposed action, you should carefully examine the regulations 
promulgated at 40 CFR part 82, subpart A. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding section.

B. What should I consider when preparing my comments?

    1. Confidential Business Information. Do not submit confidential 
business information (CBI) to EPA through www.regulations.gov or email. 
Clearly mark the part or all of the information that you claim to be 
CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark 
the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. Information so marked will not be disclosed except 
in accordance with procedures set forth in 40 CFR part 2. In addition 
to one complete version of the comment that includes information 
claimed as CBI, a copy of the comment that does not contain the 
information claimed as CBI must be submitted for inclusion in the 
public docket.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date, and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. What is methyl bromide?

    Methyl bromide is an odorless, colorless, toxic gas which is used 
as a 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 is a restricted 
use pesticide. Restricted use pesticides are subject to Federal and 
State requirements governing their sale, distribution, and use. Nothing 
in this proposed rule implementing Title VI of the Clean Air Act is 
intended to derogate from provisions in any other Federal, State, or 
local laws or regulations governing actions including, but not limited 
to, the sale, distribution, transfer, and use of methyl bromide. 
Entities affected by this proposal must comply with FIFRA and other 
pertinent statutory and regulatory requirements for pesticides 
(including, but not limited to, requirements pertaining to restricted 
use pesticides) when producing, importing, exporting, acquiring, 
selling, distributing, transferring, or using methyl bromide. The 
provisions in this proposed action are intended only to implement the 
CAA restrictions on the production, consumption, and use of methyl 
bromide for critical uses exempted from the phaseout of methyl bromide.

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

    The regulatory requirements of the stratospheric ozone protection 
program that limit production and consumption of ozone-depleting 
substances are in 40 CFR part 82, subpart A. The regulatory program was 
originally published in the Federal Register on August 12, 1988 (53 FR 
30566), in response to the 1987 signing and subsequent ratification of 
the Montreal Protocol on Substances that Deplete the Ozone Layer 
(Montreal Protocol). The Montreal Protocol is the international 
agreement aimed at reducing and eliminating the production and 
consumption of stratospheric 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. Congress 
then enacted, and President George H.W. Bush signed into law, the Clean 
Air Act Amendments of 1990 (CAAA of 1990) which included Title VI on 
Stratospheric Ozone Protection, codified as 42 U.S.C. Chapter 85, 
Subchapter VI, to ensure that the United States could satisfy its 
obligations under the Protocol. EPA issued regulations to implement 
this legislation and has since amended the regulations as needed.
    Methyl bromide was added to the Protocol as an ozone-depleting 
substance in 1992 through the Copenhagen Amendment to the Protocol. The 
Parties to the Montreal Protocol (Parties) agreed that each developed 
country's level of methyl bromide production and consumption in 1991 
should be the baseline for establishing a freeze on the level of methyl 
bromide production and consumption for developed countries. EPA 
published a final rule in the Federal Register on December 10, 1993 (58 
FR 65018), listing methyl bromide as a Class I, Group VI controlled 
substance. This rule froze U.S. production and consumption at the 1991 
baseline level of 25,528,270 kilograms, and set forth the percentage of 
baseline allowances for methyl bromide granted to companies in each 
control period (each calendar year) until 2001, when the complete 
phaseout would occur. This

[[Page 13009]]

phaseout date was established in response to a petition filed in 1991 
under sections 602(c)(3) and 606(b) of the CAAA of 1990, requesting 
that EPA list methyl bromide as a Class I substance and phase out its 
production and consumption. This date was consistent with section 
602(d) of the CAAA of 1990, which, for newly listed Class I ozone-
depleting substances provides that ``no extension [of the phaseout 
schedule in section 604] under this subsection may extend the date for 
termination of production of any class I substance to a date more than 
7 years after January 1 of the year after the year in which the 
substance is added to the list of class I substances.''
    At the Seventh Meeting of the Parties (MOP) in 1995, the Parties 
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 1990. At the Ninth MOP in 1997, the 
Parties agreed to further adjustments to the phaseout schedule for 
methyl bromide in developed countries, with reduction steps leading to 
a 2005 phaseout. The Parties also established a phaseout date of 2015 
for Article 5 countries.

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

    In October 1998, the U.S. Congress amended the Clean Air Act to 
prohibit the termination of production of methyl bromide prior to 
January 1, 2005, to require EPA to align the U.S. phaseout of methyl 
bromide with the schedule specified under the Protocol, and to 
authorize EPA to provide certain exemptions. These amendments were 
contained in Section 764 of the 1999 Omnibus Consolidated and Emergency 
Supplemental Appropriations Act (Pub. L. 105-277, October 21, 1998) and 
were codified in section 604 of the CAA, 42 U.S.C. 7671c. The amendment 
that specifically addresses the critical use exemption appears at 
section 604(d)(6), 42 U.S.C. 7671c(d)(6). EPA revised the phaseout 
schedule for methyl bromide production and consumption in a rulemaking 
on November 28, 2000 (65 FR 70795), which allowed for the reduction in 
methyl bromide consumption specified under the Protocol and extended 
the phaseout to 2005 while creating a placeholder for critical use 
exemptions. 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 use 
exemption, set forth a list of approved critical uses for 2005, and 
specified the amount of methyl bromide that could be supplied in 2005 
from stocks and new production or import to meet the needs of approved 
critical uses. EPA subsequently published rules applying the critical 
use exemption framework for each of the annual control periods from 
2006 to 2012. In the 2013 rule, EPA amended the framework to remove 
certain requirements related to sale of pre-phaseout inventory for 
critical uses.
    Under authority of section 604(d)(6) of the CAA, EPA is proposing 
the uses that will qualify as approved critical uses for two separate 
control periods (2014 and 2015) as well as the amount of methyl bromide 
that may be produced or imported to satisfy those uses in each of those 
years. EPA is also proposing to amend the regulatory framework to 
remove additional provisions related to sale of pre-phaseout inventory 
for critical uses. The proposed critical uses and amounts for 2014 
reflect Decision XXIV/5, taken at the Twenty-Fourth Meeting of the 
Parties in November 2012. The proposed critical uses and amounts for 
2015 reflect Decision XXV/4, taken at the Twenty-Fifth Meeting of the 
Parties in October 2013.
    In accordance with Article 2H(5) of the Montreal Protocol, the 
Parties have issued several Decisions pertaining to the critical use 
exemption. These include Decisions IX/6 and Ex. I/4, which set forth 
criteria for review of critical uses. The status of Decisions is 
addressed in NRDC v. EPA, (464 F.3d 1, D.C. Cir. 2006) and in EPA's 
``Supplemental Brief for the Respondent,'' filed in NRDC v. EPA and 
available in the docket for this proposed action. In this proposed rule 
on critical uses for 2014 and 2015, EPA is honoring commitments made by 
the United States in the Montreal Protocol context.

V. What is the critical use exemption process?

A. Background of the Process

    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 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. 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.
    EPA requested critical use exemption applications through Federal 
Register notices published on June 14, 2011 (76 FR 34700) (for the 2014 
control period) and on May 17, 2012 (77 FR 29341) (for the 2015 control 
period). 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 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. 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. This assessment process 
culminates in the development of the U.S. critical use nomination 
(CUN). Annually since 2003, the U.S.

[[Page 13010]]

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 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. 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 31, 2012, the United States submitted the tenth 
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 2014 critical uses. In February 
2012, MBTOC sent questions to the United States concerning technical 
and economic issues in the 2014 nomination. The United States 
transmitted responses to MBTOC in March, 2012. In May 2012, the MBTOC 
provided their interim recommendations on the U.S. nomination in the 
May TEAP Progress Report. In that report, MBTOC posed questions about 
the U.S. nominations for dried fruit, dried cured ham, and 
strawberries. The United States responded to those questions in August 
2012. These documents, together with reports by the advisory bodies 
noted above, are in the public docket for this rulemaking. The proposed 
critical uses and amounts reflect the analysis contained in those 
documents.
    On January 24, 2013, the United States submitted the eleventh 
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 2015 critical uses. In February 
and March 2013, MBTOC sent questions to the United States concerning 
technical and economic issues in the 2015 nomination. The United States 
transmitted responses to MBTOC in March, 2013. In May 2013, the MBTOC 
provided its interim recommendations on the U.S. nomination in the May 
TEAP Progress Report and posed additional questions about the U.S. 
nominations. The United States responded to those questions in August 
2013. These documents, together with reports by the advisory bodies 
noted above, are in the public docket for this rulemaking. The proposed 
critical uses and amounts reflect the analyses contained in those 
documents.

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

    The December 23, 2004, Framework Rule established the framework for 
the critical use exemption program in the United States, including 
definitions, prohibitions, trading provisions, and recordkeeping and 
reporting obligations. The preamble to the Framework Rule included 
EPA's determinations on key issues for the critical use exemption 
program.
    Since publishing the Framework Rule, EPA has annually promulgated 
regulations to exempt specific quantities of production and import of 
methyl bromide, 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), 77 FR 29218 (May 17, 2012), and 78 FR 43797 (July 
22, 2013).
    Unlike in previous years, EPA today proposes critical uses for both 
2014 and 2015. EPA is proposing to do so to expedite the issuance of 
2015 allowances. EPA has received repeated comments in recent years 
that a failure to issue CUE allowances in a timely fashion places 
manufacturers and distributors, who need to plan for the upcoming 
growing season, in a difficult position. For 2013, the final rule was 
not effective until July 22, 2013, and EPA recognizes that this late 
date could cause difficulties for growers as well as manufacturers and 
distributors. EPA seeks to avoid such difficulties for 2015 by issuing 
the authorization for that year in this rulemaking.
    Today's proposed action continues the approach established 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. The two 
control periods at issue in this rule are 2014 and 2015. 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.
    The 2013 Rule also removed from the regulatory framework the 
restriction that limits the sale of inventory for 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 methyl bromide from 
inventory produced or imported prior to the January 1, 2005, phaseout 
date for an approved critical use during the specified control period. 
Under the framework, the sale of pre-phaseout inventories for critical 
uses in excess of the amount of CSAs held by the seller was prohibited. 
Today, EPA is proposing to remove all of the remaining provisions in 40 
CFR part 82 related to critical stock allowances.

C. Proposed Critical Uses

    In Decision XXIV/5, taken in November 2012, the Parties to the 
Protocol agreed ``to permit, for the agreed critical-use categories for 
2014 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 2014 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 XXIV/5 for the United States:

 Commodities
 Mills and food processing structures
 Cured pork
 Strawberry--field

    In Decision XXV/4, taken in October 2013, the Parties to the 
Protocol agreed ``[t]o permit, for the agreed critical-use categories 
for 2015 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 2015 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 XXV/4 for the United States:

 Cured 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 categories identified in 
Decision XXIV/5 and Decision XXV/4. EPA is proposing to amend the table 
of critical uses and critical users based on the authorizations in 
Decision XXIV/5 and Decision XXV/4 and the technical analyses contained 
in the 2014 and 2015 U.S. nominations that assess data

[[Page 13011]]

submitted by applicants to the CUE program.
    EPA is seeking comment on the technical analyses contained in the 
U.S. nominations (available for public review in the docket). 
Specifically, EPA requests information regarding any changes to the 
registration (including cancellations or registrations), use, or 
efficacy of alternatives that have occurred after the nominations were 
submitted. 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.
    The following are proposed changes to the existing appendix, 
starting with changes due to the applications and analysis conducted 
for the 2014 control period. For 2014, EPA is proposing to remove 
Georgia growers of cucurbits, eggplants, peppers, and tomatoes. These 
groups did not submit applications for 2014 and therefore were not 
included in the 2014 U.S. nomination.
    EPA is proposing to remove sectors or users that applied for a 
critical use in 2014 but that the United States did not nominate for 
2014. 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 
United States Government (USG) determined that certain sectors or users 
did not meet the critical use criteria in Decision IX/6 and the United 
States therefore did not include them in the 2014 Critical Use 
Nomination. EPA notified these sectors of their status by letters dated 
February 7, 2012. These sectors are orchard replant for California wine 
grape growers and Florida growers of eggplants, peppers, and tomatoes. 
For each of these uses, EPA found that there are technically and 
economically feasible alternatives to methyl bromide.
    Some sectors that were not included in the 2014 Critical Use 
Nomination submitted supplemental applications for 2014. These sectors 
are: The California Association of Nursery and Garden Centers; 
California stone fruit, table and raisin grape, walnut, and almond 
growers; ornamental growers in California and Florida; California 
strawberry nurseries; stored walnuts; and the U.S. Golf Course 
Superintendents Association. For those sectors the USG came to a 
decision that the sectors not nominated have not provided rigorous and 
convincing evidence that they meet the criteria laid out in Decision 
IX/6, and further that no new problem or large yield/quality loss had 
been demonstrated that warranted seeking a supplemental authorization 
from the Parties to the Montreal Protocol.
    The following are proposed changes to the existing appendix due to 
the applications and analysis conducted for the 2015 control period. 
For 2015 EPA is proposing to remove California wine grape growers and 
Florida growers of eggplants, peppers, tomatoes, and strawberries. 
These groups did not submit applications for 2015 and therefore were 
not included in the 2015 U.S. nomination.
    EPA is proposing to remove sectors or users that applied for a 
critical use in 2015 but that the United States did not nominate for 
2015. As described above EPA conducted a thorough technical assessment 
of each application and the USG determined that certain sectors or 
users did not meet the critical use criteria. EPA notified these 
sectors of their status by letters dated March 26, 2013. These sectors 
are rice millers, pet food manufacturing facilities, members of the 
North American Millers Association, and California entities storing 
walnuts, dried plums, figs, and raisins. In addition, EPA is proposing 
to remove entities storing dates as a critical use for 2015. While the 
United States nominated this sector for 2015, MBTOC did not recommend 
that this sector be a critical use in 2015 and the Parties did not 
authorize this use.
    EPA has received supplemental applications for 2015 from sectors 
that the United States did not nominate for 2015. These sectors are: 
Michigan cucurbit, eggplant, pepper, and tomato growers; Florida 
eggplant, pepper, tomato, and strawberry growers; the California 
Association of Nursery and Garden Centers; California stone fruit, 
table and raisin grape, walnut, and almond growers; ornamental growers 
in California and Florida; the U.S. Golf Course Superintendents 
Association; and stored walnuts, dried plums, figs, and raisins in 
California. The USG is currently reviewing these supplemental 
applications for 2015 and EPA is not proposing at this time to 
authorize critical use for these sectors. EPA is not proposing at this 
time to authorize critical use for these sectors but may take future 
action as appropriate.
    Finally, EPA is adding information to Column B of appendix L to 
clarify which critical uses are approved for which control periods. EPA 
is not proposing other changes to the table but is repeating the 
following clarifications made in previous years for ease of reference. 
The ``local township limits prohibiting 1,3-dichloropropene'' are 
prohibitions on the use of 1,3-dichloropropene products in cases where 
local township limits on use of this alternative have been reached. In 
addition, ``pet food'' under subsection B of Food Processing refers to 
food for domesticated dogs and cats. Finally, ``rapid fumigation'' for 
commodities refers to instances in which a buyer provides short (two 
working days or fewer) notification for a purchase or there is a short 
period after harvest in which to fumigate and there is limited silo 
availability for using alternatives.

D. Proposed Critical Use Amounts

    Table A of the annex to Decision XXIV/5 lists critical uses and 
amounts agreed to by the Parties to the Montreal Protocol for 2014. The 
maximum amount of new production and import for U.S. critical uses, 
specified in Table B of Decision XXIV/5, is 442,337 kg, minus available 
stocks. This figure is equivalent to 1.7% of the U.S. 1991 methyl 
bromide consumption baseline of 25,528,270 kg.
    Similarly, Table A of the annex to Decision XXV/4 lists critical 
uses and amounts agreed to by the Parties to the Montreal Protocol for 
2015. The maximum amount of new production and import for U.S. critical 
uses, specified in Table B of Decision XXV/4, is 376,900 kg, minus 
available stocks. This figure is equivalent to 1.5% of the U.S. 1991 
methyl bromide consumption baseline.
    For 2014 and 2015, EPA is proposing 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 authorized by the Parties 
to the Montreal Protocol in their Decisions 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. As established in the 2013 Rule, EPA would 
not allocate critical stock allowances. EPA would still determine 
whether there are any ``available stocks'' and reduce the new 
production allocation by that amount. Applying this approach, EPA is 
proposing to allocate allowances to exempt 442,337 kg of new production 
and import of methyl bromide for critical uses in 2014 and

[[Page 13012]]

376,900 kg of new production and import for 2015.
    Available Stocks: For 2014 and 2015 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 2014 and 2015. The 
amount of existing stocks reported to EPA as of December 31, 2012, was 
627,066 kg.
    The Parties to the Protocol recognized in their Decisions that the 
level of existing stocks may differ from the level of available stocks. 
Both Decision XXIV/5 and Decision XXV/4 state 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 Decisions 
recognize that ``parties operating under critical-use exemptions should 
take into account the extent to which methyl bromide is available in 
sufficient quantity and quality from existing stocks. . . .'' Earlier 
Decisions also refer to the use of ``quantities of methyl bromide from 
stocks that the Party has recognized to be available.'' Thus, it is 
clear that individual Parties may determine their level of available 
stocks. Section 604(d)(6) of the CAA does not require EPA to adjust the 
amount of new production and import to reflect the availability of 
stocks; however, as explained in previous rulemakings, making such an 
adjustment is a reasonable exercise of EPA's discretion under this 
provision.
    In the 2013 CUE Rule (78 FR 43797, July 22, 2013), EPA established 
an approach that considered whether a percentage of the existing 
inventory was available. In that rule, EPA took comment on whether 0% 
or 5% of the existing stocks was available. The final rule found that 
0% was available to be allocated for critical use in 2013 for a number 
of reasons including: A pattern of significant underestimation of 
inventory drawdown; the increasing concentration of critical users in 
California while inventory remained distributed nationwide; and the 
recognition that the agency cannot compel distributors to sell 
inventory to critical users. For further discussion, please see the 
2013 CUE Rule. EPA believes these circumstances remain true for 2014 
and 2015.
    In addition, the 2013 CUE Rule removed the restriction that 
critical stock allowances be expended to sell inventory to critical 
uses. As a result, for the first time in the history of the CUE 
program, distributors were free to sell their entire remaining 
inventory to critical users. At this time, EPA is unable to calculate 
what effect this policy change may have had on the remaining inventory, 
although the agency will docket end of year inventory data that will be 
reported to EPA in February 2014. EPA notes that it may be difficult to 
assess the impact of this change, which went into effect in mid-2013, 
simply from updated inventory data. EPA solicits comments on whether, 
and how, to draw inferences as to the availability of stocks for 
critical uses based on inventory figures as of December 31, 2013, 
(e.g., whether the magnitude of the reduction in pre-phaseout stocks 
could be evidence of the degree of availability for critical uses).
    For these reasons, EPA is proposing to find 0% of the existing 
inventory available for 2014 and 2015. EPA specifically invites comment 
on whether 0% or 5% of existing inventory will be available to critical 
users in 2014 and/or 2015, taking into consideration 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, 2012, were equal to 627,066 kg. 
Therefore, 5% would be 31,353 kg. Were EPA to find 5% of existing 
stocks to be available, EPA would reduce the amount of new production 
for 2014 and/or for 2015 by 31,353 kg. EPA notes that it is not 
proposing to allocate a corresponding amount of critical stock 
allowances, as had been the case prior to 2013. EPA removed the 
requirement to expend critical stock allowances when selling inventory 
to critical users in the 2013 CUE Rule. EPA notes that it will receive 
updated end of year inventory data in February 2014. EPA anticipates 
that inventory will have been further drawn down, and therefore 5% of 
the existing stocks, based on the updated data, is likely to be 
significantly less than 31,353 kg. EPA solicits comment on whether, if 
EPA concludes some portion of existing stocks are ``available,'' EPA 
should calculate the portion that is available for 2014 and/or 2015 
based on the updated data for inventory as of December 31, 2013.
    Carryover Material: The Parties in paragraph 9 of Decision XXIV/5 
``urge parties operating under critical-use exemptions to put in place 
effective systems to discourage the accumulation of methyl bromide 
produced under the exemptions.'' 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, the amount of carryover from 2012 
is factored into the determination for 2014. Carryover material (which 
is produced using critical use allowances) is not included in EPA's 
definition of existing inventory (which applies to pre-2005 material) 
because this would lead to a double-counting of carryover amounts.
    All critical use methyl bromide that companies reported to be 
produced or imported in 2012 was sold to end users. 759 MT of critical 
use methyl bromide was produced or imported in 2012. Slightly more than 
the amount produced or imported was actually sold to end-users. This 
additional amount was from distributors selling material that was 
carried over from the prior control period. Therefore, EPA is proposing 
to apply the carryover deduction of 0 kg to the new production amount 
for 2014. EPA's calculation of the amount of carryover at the end of 
2012 is 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. Past U.S. Accounting Frameworks, including the 
one for 2012, are available in the public docket for this rulemaking.
    Production, import, and sales data for 2013 will be reported to EPA 
in February 2014. Without these data, the agency is unable to calculate 
how, or whether, a reduction for carryover would affect the 2015 
allocation amount. However, EPA anticipates that the carryover will 
remain 0 kg, as it has been at that level since 2009. Based on 
information available, EPA believes that the demand for critical use 
methyl bromide continues to be high and all material produced or 
imported for a particular control period is sold in that control 
period. Therefore, while the proposed allocation amount for 2015 
assumes 0 kg of carryover in 2013, EPA proposes to use the reported 
data to calculate the actual carryover amount

[[Page 13013]]

for 2013, and subtract that amount (if any) from the authorization for 
new production and import in the final rule.
    Uptake of Alternatives: 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 and increased the new production 
amount when an alternative is withdrawn, but not above the amount 
authorized by the Parties.
    Since the United States submitted the 2014 CUN on January 31, 2012, 
the California Department of Pesticide Regulation has proposed control 
measures for the use of chloropicrin with the intent of reducing risk 
from acute exposures that might occur near fields fumigated with 
products containing chloropicrin. Because this regulation is at the 
proposed stage and has not been finalized, EPA is unable to state what 
effects these changes may have on the availability of methyl bromide 
alternatives for 2014. It is more likely that the proposed changes to 
the chloropicrin regulation would affect the 2015 control period and 
EPA specifically invites comments on the implications for 2015. However 
EPA is not proposing to make any reductions for either the 2014 or 2015 
control periods because of these uncertainties. The critical use 
exemption program has historically only relied on final actions when 
determining the availability of alternatives. EPA is not aware of any 
other actions regarding alternatives that would lead to either an 
increase or decrease in 2014 and 2015.
    EPA is not proposing to make any other modifications to CUE amounts 
to account for availability of alternatives. Rates of transition to 
alternatives have already been applied for authorized 2014 and 2015 
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 adoption of methyl bromide 
alternatives, and to request information about the economic and 
technical feasibility of all existing and potential alternatives.
    Allocation Amounts: EPA is proposing to allocate 2014 critical use 
allowances for new production or import of methyl bromide equivalent to 
442,337 kg. Because EPA is taking comment on finding 5% of existing 
inventory to be available, EPA is also taking comment on an allocation 
of 410,984 kg. EPA is also proposing to allocate 2015 critical use 
allowances for new production or import of methyl bromide equivalent to 
376,900 kg. EPA is also taking comment on whether it should find 5% of 
existing inventory to be available, which would result in an allocation 
of 345,547 kg. EPA is taking further comment on whether, if EPA 
concludes some portion of existing stocks are ``available,'' EPA should 
calculate the portion that is available for 2014 and/or 2015 based on 
the updated data for inventory to be submitted in February 2014.
    EPA is proposing to allocate the 2014 and 2015 allowances to the 
four companies that hold baseline allowances. The proposed allocations, 
as in previous years, are in proportion to those baseline amounts, as 
shown in the proposed changes to the table in 40 CFR 82.8(c)(1). 
Paragraph 3 of Decision XXIV/5 and paragraph 5 of Decision XXV/4 state 
that ``parties shall endeavour 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 universal, 
allocation, modified to include distinct caps for pre-plant and post-
harvest uses, was the most efficient and least burdensome approach that 
would achieve the desired environmental results, and that a sector-by-
sector approach would pose significant administrative and practical 
difficulties. For the reasons discussed in the preamble to the 2009 CUE 
rule (74 FR 19894), and because of the limited number of authorized 
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. Amending the Critical Stock Allowance Framework

    The 2013 Rule removed the provisions at Sec.  82.4(p)(ii) and (iii) 
requiring the use of critical stock allowances for sales of inventory 
to critical users. In addition, EPA made some necessary conforming 
changes to 40 CFR Part 82, which follow from removing those 
restrictions including removing the reference to the restriction on 
selling inventory pursuant to a CSA from the definition of ``critical 
use methyl bromide.''
    The 2013 Rule also stated that EPA believed additional conforming 
changes may be appropriate but that it would address those changes in a 
future rulemaking. Today EPA is proposing and taking comment on 
removing the remaining references to critical stock allowances in 40 
CFR Part 82. EPA believes these provisions are no longer necessary if 
the agency is not allocating separate critical stock allowances. 
Specifically, EPA is proposing to remove the definitions of ``critical 
stock allowance,'' ``critical stock allowance holder,'' and 
``unexpended critical stock allowance'' from Sec.  82.3. EPA is 
proposing to no longer allow for the intercompany transfer of critical 
stock allowances at Sec.  82.12(a) \1\ or the exchange of critical use 
allowances for critical stock allowances at Sec.  82.12(e). EPA is also 
proposing to remove the reporting and recordkeeping requirements 
related to critical stock allowances in Sec.  82.13(3) and (4). EPA 
invites comment on the necessity of these provisions, the 
appropriateness of removing them from the Code of Federal Regulations, 
and whether there are other provisions that should be amended in light 
of the removal of the requirement to use critical stock allowances for 
sales of inventory to critical users.
---------------------------------------------------------------------------

    \1\ This provision allows any critical stock allowance holder 
(``transferror'') to transfer critical stock allowances to any 
critical stock allowance holder or any methyl bromide producer, 
importer, distributor, or third party applicator (``transferee'').
---------------------------------------------------------------------------

    In 2013 EPA held discussions with USDA and the Department of State 
on tools that could potentially address immediate and unforeseen needs 
for methyl bromide including whether emergency situations may arise 
that warrant the use of methyl bromide consistent with the treaty, 
recognizing that emergency uses are not intended as a replacement for 
CUE uses. In August, EPA held a stakeholder meeting to present, among 
other things, the findings of those discussions and noted that the 
three agencies had not yet identified any specific situations that 
could not be addressed by current mechanisms. The U.S. government is 
committed to using flexibility in the Protocol's existing mechanisms as 
an avenue to address changes in national circumstance that affect the 
transition to alternatives. EPA welcomes comments on specific emergency 
situations that may necessitate the use of methyl bromide, consistent 
with the

[[Page 13014]]

requirements of the Montreal Protocol, and which could be difficult to 
address using current tools and authorities.

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

    Decision XXIV/5 and Decision XXV/4 call on Parties to apply the 
conditions and criteria listed in Decisions Ex. I/4 (to the extent 
applicable) and IX/6 paragraph 1 to exempted critical uses for the 2014 
and 2015 control periods. A discussion of the agency's application of 
the criteria in paragraph 1 of Decision IX/6 appears in sections V.A., 
and V.C. of this preamble. Section V.C. solicits comments on the 
technical and economic basis for determining that the uses listed in 
this proposed rule meet the criteria of the critical use exemption. The 
CUNs detail how each proposed critical use meets the criteria 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 paragraph (1)(b)(ii), which refers 
to the use of available stocks of methyl bromide, is addressed in 
section V.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 readers to the preamble to the 2006 CUE 
rule (71 FR 5989, February 6, 2006) as well as to the memo in the 
docket titled ``Development of 2003 Nomination for a Critical Use 
Exemption for Methyl Bromide for the United States of America'' for 
further elaboration. As explained in those documents, EPA's 
interpretation of this term has several dimensions, including looking 
at potential effects on both demand and supply for a commodity, 
evaluating potential 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 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 paragraphs 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.
    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 (see 
Decision IX/6 paragraph (1)(b)(iii)) 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 paragraph 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 of the Parties 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, whenever 
technically and economically feasible. EPA developed a comprehensive 
strategy for risk mitigation through the 2009 Reregistration 
Eligibility Decision (RED) for methyl bromide, which is implemented 
through restrictions on how methyl bromide products can be used. This 
approach means that methyl bromide labels require 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 developing and implementing 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 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/programs/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 such techniques to inform EPA of 
their experiences and to provide such information with their critical 
use applications.

VI. Statutory and Executive Order Reviews

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

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this proposal is a ``significant regulatory action'' 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. 
This rule

[[Page 13015]]

does propose to remove requirements related to the recordkeeping and 
reporting of critical stock allowances which would decrease the 
information collection burden. The Office of Management and Budget 
(OMB) has previously approved the information collection requirements 
contained in the existing regulations at 40 CFR part 82 under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2060-0482. The OMB control numbers for 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice-and-comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions. For purposes of assessing the impacts of 
this rule on small entities, small entity is defined as: (1) A small 
business as defined by the Small Business Administration's regulations 
at 13 CFR 121.201 (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.

----------------------------------------------------------------------------------------------------------------
                                                                                           NAICS small business
                                                                                            size standard  (in
                            Category                                   NAICS code        number of  employees or
                                                                                           millions of  dollars)
----------------------------------------------------------------------------------------------------------------
Agricultural production........................................  1112--Vegetable and     $0.75 million.
                                                                  Melon farming.
                                                                 1113--Fruit and Nut
                                                                  Tree Farming.
                                                                 1114--Greenhouse,
                                                                  Nursery, and
                                                                  Floriculture
                                                                  Production.
Storage Uses...................................................  115114--Postharvest     $7 million.
                                                                  Crop activities
                                                                  (except Cotton
                                                                  Ginning).
                                                                 311211--Flour Milling.  500 employees.
                                                                 311212--Rice Milling..  500 employees.
                                                                 493110--General         $25.5 million.
                                                                  Warehousing and
                                                                  Storage.
                                                                 493130--Farm Product    $25.5 million.
                                                                  Warehousing and
                                                                  Storage.
Distributors and Applicators...................................  115112--Soil            $7 million.
                                                                  Preparation, Planting
                                                                  and Cultivating.
Producers and Importers........................................  325320--Pesticide and   500 employees.
                                                                  Other Agricultural
                                                                  Chemical
                                                                  Manufacturing.
----------------------------------------------------------------------------------------------------------------

    Agricultural producers of minor crops and entities that store 
agricultural commodities are categories of affected entities that 
contain small entities. This proposed rule would only affect entities 
that applied to EPA for an exemption to the phaseout of methyl bromide. 
In most cases, EPA received aggregated requests for exemptions from 
industry consortia. On the exemption application, EPA asked consortia 
to describe the number and size distribution of entities their 
application covered. EPA estimated that 3,218 entities petitioned EPA 
for an exemption for the 2005 control period. EPA revised this estimate 
in 2011 down to 1,800 end users of critical use methyl bromide. EPA 
believes that the number continues to decline as growers cease applying 
for the critical use exemption. Since many applicants did not provide 
information on the distribution of sizes of entities covered in their 
applications, EPA estimated that, based on the above definition, 
between one-fourth and one-third of the entities may be small 
businesses. In addition, other categories of affected entities do not 
contain small businesses based on the above description.
    After considering the economic impacts of this proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' (5 U.S.C. 
603-604). Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves a regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule. Since 
this rule would allow the use of methyl bromide for approved critical 
uses after the phaseout date of January 1, 2005, this action would 
confer a benefit to users of methyl bromide. EPA estimates in the 
Regulatory Impact Assessment found in the docket to this rule that the 
reduced costs resulting from the de-regulatory creation of the 
exemption are approximately $22 million to $31 million on an annual 
basis (using a 3% or 7% discount rate respectively). We have therefore 
concluded that this proposed rule would relieve regulatory burden for 
all small entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. The action imposes no enforceable duty on any State, local or 
tribal governments or the private sector. Instead, this action would 
provide an exemption for the manufacture and use of a phased out 
compound and would not impose any new requirements on any entities. 
Therefore, this action is not subject to the requirements of sections 
202 or 205 of the UMRA. This action is also not subject to the 
requirements of section 203 of UMRA because it contains no regulatory 
requirements that might significantly or uniquely affect small 
governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in

[[Page 13016]]

Executive Order 13132. This proposed rule is expected to affect 
producers, suppliers, importers, and exporters and users of methyl 
bromide. Thus, Executive Order 13132 does not apply to this proposed 
rule. In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed action 
from State and local officials.

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

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

G. Executive Order No. 13045: Protection of Children From Environmental 
Health and Safety Risks

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

I. National Technology Transfer and Advancement Act

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

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations, because it affects the 
level of environmental protection equally for all affected populations 
without having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. Any ozone depletion that results from this proposed 
rule will impact all affected populations equally because ozone 
depletion is a global environmental problem with environmental and 
human effects that are, in general, equally distributed across 
geographical regions in the United States.

List of Subjects in 40 CFR Part 82

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

    Dated: February 14, 2014.
Gina McCarthy,
Administrator.

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

PART 82--PROTECTION OF STRATOSPHERIC OZONE

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

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

Sec.  82.3  [Amended]

0
2. Amend Sec.  82.3 by removing the definitions for ``Critical stock 
allowance (CSA)'', ``Critical stock allowance (CSA) holder'' and 
``Unexpended critical stock allowance (CSA)''.
0
3. Amend Sec.  82.8 by revising the table in paragraph (c)(1) to read 
as follows:

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

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

----------------------------------------------------------------------------------------------------------------
                                   2014 Critical use   2014 Critical use   2015 Critical use   2015 Critical use
                                  allowances for pre-   allowances for    allowances for pre-   allowances for
             Company                 plant uses *      post-harvest uses     plant uses *      post-harvest uses
                                      (kilograms)        * (kilograms)        (kilograms)        * (kilograms)
----------------------------------------------------------------------------------------------------------------
Great Lakes Chemical Corp. A                 252,236              16,572             227,073               1,969
 Chemtura Company...............
Albemarle Corp..................             103,725               6,815              93,378                 810
ICL-IP America..................              57,321               3,766              51,602                 447
TriCal, Inc.....................               1,785                 117               1,607                  14
                                 -------------------------------------------------------------------------------
    Total.......................             415,067              27,270             373,660               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 for the appropriate control period.

[[Page 13017]]

* * * * *
0
4. Amend Sec.  82.12 by revising paragraph (a) and removing paragraph 
(e) to read as follows:

Sec.  82.12  Transfers of allowances for class I controlled substances.

    (a) Inter-company transfers. (1) Until January 1, 1996, for all 
class I controlled substances, except for Group VI, and until January 
1, 2005, for Group VI, any person (``transferor'') may transfer to any 
other person (``transferee'') any amount of the transferor's 
consumption allowances or production allowances, and effective January 
1, 1995, for all class I controlled substances any person 
(``transferor'') may transfer to any other person (``transferee'') any 
amount of the transferor's Article 5 allowances. After January 1, 2002, 
any essential-use allowance holder (including those persons that hold 
essential-use allowances issued by a Party other than the United 
States) (``transferor'') may transfer essential-use allowances for CFCs 
to a metered dose inhaler company solely for the manufacture of 
essential MDIs. After January 1, 2005, any critical use allowance 
holder (``transferor'') may transfer critical use allowances to any 
other person (``transferee'').
* * * * *
0
5. Amend Sec.  82.13 by:
0
a. Revising paragraphs (f)(3)(iv) and (g)(4)(vii); and
0
b. Removing and reserving paragraphs (bb)(2)(iv) and (cc)(2)(iv)
    The revised text reads as follows.

Sec.  82.13  Recordkeeping and reporting requirements for class I 
controlled substances.

* * * * *
    (f) * * *
    (3) * * *
    (iv) The producer's total of expended and unexpended production 
allowances, consumption allowances, Article 5 allowances, critical use 
allowances (pre-plant), critical use allowances (post-harvest), and 
amount of essential-use allowances and destruction and transformation 
credits conferred at the end of that quarter;
* * * * *
    (g) * * *
    (4) * * *
    (vii) The importer's total sum of expended and unexpended 
consumption allowances by chemical as of the end of that quarter and 
the total sum of expended and unexpended critical use allowances (pre-
plant) and unexpended critical use allowances (post-harvest);
* * * * *
0
6. Amend Subpart A by revising Appendix L to read as follows:

Appendix L to Subpart A of Part 82--Approved Critical Uses and Limiting 
Critical Conditions for Those Uses for the 2014 and 2015 Control 
Periods

----------------------------------------------------------------------------------------------------------------
             Column A                             Column B                                Column C
----------------------------------------------------------------------------------------------------------------
                                                                             Limiting critical conditions that
                                     Approved critical user, location of    exist, or that the approved critical
      Approved critical uses               use, and control period          user reasonably expects could arise
                                                                             without methyl bromide fumigation:
----------------------------------------------------------------------------------------------------------------
                                                 PRE-PLANT USES
----------------------------------------------------------------------------------------------------------------
Strawberry Fruit.................  California growers. Control periods     Moderate to severe black root rot or
                                    2014 and 2015.                          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
----------------------------------------------------------------------------------------------------------------
Food Processing..................  (a) Rice millers in the U.S. who are    Moderate to severe beetle, weevil, or
                                    members of the USA Rice Millers         moth infestation.
                                    Association. Control period 2014.      Presence of sensitive electronic
                                                                            equipment subject to corrosion.
                                   (b) Pet food manufacturing facilities   Moderate to severe beetle, moth, or
                                    in the U.S. who are members of the      cockroach infestation.
                                    Pet Food Institute. Control period     Presence of sensitive electronic
                                    2014.                                   equipment subject to corrosion.
                                   (c) Members of the North American       Moderate to severe beetle
                                    Millers' Association in the U.S.        infestation.
                                    Control period 2014.                   Presence of sensitive electronic
                                                                            equipment subject to corrosion.
Commodities......................  California entities storing walnuts,    Rapid fumigation required to meet a
                                    dried plums, figs, raisins, and dates   critical market window, such as
                                    (in Riverside county only) in           during the holiday season.
                                    California. Control period 2014.
Dry Cured Pork Products..........  Members of the National Country Ham     Red legged ham beetle infestation.
                                    Association and the Association of     Cheese/ham skipper infestation.
                                    Meat Processors, Nahunta Pork Center   Dermested beetle infestation.
                                    (North Carolina), and Gwaltney and     Ham mite infestation.
                                    Smithfield Inc. Control periods 2014
                                    and 2015.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2014-04882 Filed 3-6-14; 8:45 am]
BILLING CODE 6560-50-P
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