1 

## Arling, Jeremy

From: Thomas, Amanda <Amanda_L._Thomas@omb.eop.gov> Sent: Tuesday, June 17, 2014 5:54 PM To: Arling, Jeremy Subject: CUE MeBr Interagency comments Attachments: CUE MeBr Interagency Comments_06172014.docx



### Jeremy, please find attached the interagency commen ts on the CUE MeBr rule. Let’s touch base in the m orning as to whether we need to have the conference call. Have a good evening! Amanda*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

1 of 39 6560-50-P EO12866MeBrCUE2060-AR80Final20140604.doc ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 82 [EPA-HQ-OAR-2014-0065; FRL-9911-99-OAR] RIN: 2060-AR80 Protection of Stratospheric Ozone: The 2014 and 201 5 Critical Use Exemption from the Phaseout of Methyl Bromide AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The Environmental Protection Agency (EPA) is autho rizing uses that qualify for the critical use exemption and the amou nt of methyl bromide that may be produced or imported for those uses for both the 20 14 and 2015 control periods. EPA is taking this action under the authority of the Clean Air Act to reflect consensus decisions of the Parties to the Montreal Protocol on Substanc es that Deplete the Ozone Layer at the Twenty-Fourth and Twenty-Fifth Meetings of the Part ies. EPA is also amending the regulatory framework to remove provisions related t o sale of pre-phaseout inventory for critical uses. 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-2014-0065. All documents in the docket are l isted on the www.regulations.gov website. Although listed in the index, some informa tion is not publicly available, e.g.,*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

2 of 39 confidential business information (CBI) or other in formation 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 throu gh 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 i s open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holida ys. The telephone number for the Public Reading Room is (202) 566-1744, and the tele phone 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) 3 43-9055, or by e-mail at arling.jeremy@epa.gov or by mail at U.S. Environmen tal Protection Agency, Stratospheric Protection Division, Stratospheric Pr ogram Implementation Branch (6205J), 1200 Pennsylvania Avenue, N.W., Washington , D.C., 20460. You may also visit the methyl bromide section of the Ozone Depletion w ebsite of EPA’s Stratospheric Protection Division at www.epa.gov/ozone/mbr for fu rther information about the methyl bromide critical use exemption, other Stratospheric Ozone Protection regulations, the science of ozone layer depletion, and related topic s. SUPPLEMENTARY INFORMATION: This rule concerns Clean Air Act (CAA) restrictions on the consumption, production, and us e of methyl bromide (a Class I, Group VI controlled substance) for critical uses during c alendar years 2014 and 2015. Under the Clean Air Act, methyl bromide consumption (consumpt ion is defined under section 601 of the CAA as production plus imports minus exports ) and production were phased out*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

3 of 39 on January 1, 2005, apart from allowable exemptions , such as the critical use and the quarantine and preshipment (QPS) exemptions. With t his action, EPA is authorizing uses that qualify for the critical use exemption as well as specific amounts of methyl bromide that may be produced and imported for those uses fo r the 2014 and 2015 control periods. Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. Chapter 5, generally provides that rules may not take effect e arlier than 30 days after they are published in the Federal Register. EPA is issuing t his final rule under section 307(d)(1) of the Clean Air Act, which states: “The provisions o f section 553 through 557 . . . of Title 5 shall not, except as expressly provided in this s ection, apply to actions to which this subsection applies.” Thus, section 553(d) of the AP A 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 recogni zes an exemption or relieves a restriction.” 5 U.S.C. § 553(d)(1). Since today’s a ction can be considered to either grant an exemption for limited critical uses during 2014 and 2015 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 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?*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

4 of 39 C. Critical Uses D. Critical Use Amounts E. Amending the Critical Stock Allowance Framework F. Emergency Uses G. The Criteria in Decisions IX/6 and Ex. I/4 H. Emissions Minimization III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive

Order 13563: Improving Regulation and Regulatory Re view B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordin ation with Indian Tribal

Governments G. Executive Order 13045: Protection of Children f rom Environmental Health and Safety Risks H. Executive Order 13211: Actions that Significant ly Affect Energy Supply,

Distribution, or Use I. National Technology Transfer and Advancement Ac t J. Executive Order 12898: Federal Actions to Addres s Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act
I. General Information Entities and categories of entities potentially re gulated by this action include producers, importers, and exporters of methyl bromi de; applicators and distributors of methyl bromide; and users of methyl bromide that ap plied 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 su ch as grain mills and processors. This list is not intended to be exhaustive, but rat her to provide a guide for readers regarding entities likely to be regulated by this a ction. To determine whether your facility, company, 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*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

5 of 39 questions regarding the applicability of this actio n 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 th e critical use exemption provision. At the Ninth Meeting of the Parties in 1 997, 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 o f 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 a vailable to the user that are acceptable from the standpoint of environment and health and a re suitable to the crops and circumstances of the nomination.” EPA promulgated t hese criteria in the definition of “critical use” at 40 CFR 82.3. In addition, the Decision IX/6 provides that production and consumption, if any, of methyl bromide for critical uses should be permitted only if a variety of conditions have been met, including that all technically and economically feasible steps have been taken to minimize the crit ical 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 ava ilable in sufficient quantity and quality from existing stocks of banked or recycled methyl b romide. EPA requested critical use exemption applications through Federal Register notices published on June 14, 2011 (76 FR 34700) (f or the 2014 control period) and on May 17, 2012 (77 FR 29341) (for the 2015 control pe riod). Applicants submitted data on Deleted: theret

Deleted: Parties decided*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

6 of 39 their use of methyl bromide, the technical and econ omic feasibility of using alternatives, ongoing research programs into the use of alternati ves in their sector, and efforts to minimize use and emissions of methyl bromide. EPA reviews the data submitted by applicants, as w ell as data from governmental and academic sources, to establish whether there ar e technically and economically feasible alternatives available for a particular us e of methyl bromide, and whether there would be a significant market disruption if no exem ption were available. In addition, an interagency workgroup reviews other parameters of t he exemption applications such as dosage and emissions minimization techniques and ap plicants’ 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 Agric ulture (USDA) and other departments and institutions of the Federal governm ent 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. Department of State has submitted a CUN to the United Nations Environme nt Programme (UNEP) Ozone Secretariat. The Methyl Bromide Technical Options C ommittee (MBTOC) and the Technology and Economic Assessment Panel (TEAP), wh ich are advisory bodies to Parties to the Montreal Protocol, review each Party ’s CUN and make recommendations to the Parties on the nominations. The Parties then take Decisions on critical use exemptions for particular Parties, including how mu ch methyl bromide may be supplied for the exempted critical uses. EPA then provides a n opportunity for public comment on the amounts and specific uses of methyl bromide tha t the agency is proposing to exempt. Deleted: the authorization of*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

7 of 39 On January 31, 2012, the United States submitted t he tenth Nomination for a Critical Use Exemption for Methyl Bromide for the United States of America to the Ozone Secretariat of UNEP. This nomination containe d the request for 2014 critical uses. In February 2012, MBTOC sent questions to the Unite d 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 provid ed their interim recommendations on the U.S. nomination in the May T EAP Progress Report. In that report, MBTOC posed questions about the U.S. nomina tions 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 advis ory bodies noted above, are in the public docket for this rulemaking. The critical use s and amounts authorized in this rule reflect the analyses contained in those documents. On January 24, 2013, the United States submitted th e eleventh Nomination for a Critical Use Exemption for Methyl Bromide for the United States of America to the Ozone Secretariat of UNEP. This nomination containe d 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 nominatio n. 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 T EAP Progress Report and posed additional questions about the U.S. nominations. Th e 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 rule making. The critical uses and amounts authorized in this rule reflect the analyses contai ned in those documents.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

8 of 39 B. How Does This Rule Relate to Previous Critical U se 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 annua lly promulgated regulations to exempt specific quantities of production and imp ort 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 fo r that year. See 71 FR 5985 (February 6, 2006), 71 FR 75386 (December 14, 2006), 72 FR 74 118 (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 2 2, 2013). Unlike in previous years, this rule authorizes crit ical uses for both 2014 and 2015. EPA proposed to do so to expedite the issuance of 2 015 allowances. EPA has received repeated comments to previous CUE rules that a fail ure to issue 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 recognized that this late da te could cause difficulties for growers as well as manufacturers and distributors. EPA rece ived one comment supporting the promulgation of CUE rules on a two-year basis. Whil e the commenter urges EPA issue future CUE rules on a two-year basis, the agency is not able to commit to doing so in future and notes that combining two control periods in one rule may result in CUAs being*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

9 of 39 issued for the first control period later than stak eholders would prefer. Given the timing of action by the Parties to the Montreal Protocol on critical uses, EPA is unlikely to be able to add a second control period to a rule witho ut affecting the rule’s schedule. Today’s action continues the approach established i n 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 cri tical 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 a llowances expire at the end of that control period and, as explained in the Framework R ule, are not bankable from one year to the next. The 2013 Rule also removed from the regulatory fram ework the restriction that limits the sale of inventory for critical uses thro ugh allocations of Critical Stock Allowances (CSA). A CSA was the right granted throu gh 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 t he 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. As discu ssed in the 2013 Rule, EPA removed the requirement for CSAs because the restriction wa s less relevant as few critical uses remained and because changes in labeling would make remaining inventory practically inaccessible. This rule removes all of the remainin g provisions in 40 CFR part 82 related to critical stock allowances. C. Critical Uses Deleted: international authorizations of*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

10 of 39 In Decision XXIV/5, taken in November 2012, the Pa rties to the Protocol agreed “[t]o permit, for the agreed critical-use categories for 2014 set forth in table A of the annex to the present decision for each party, subje ct to the conditions set forth in the present decision and in decision Ex.I/4 to the exte nt that those conditions are applicable, the levels of production and consumption for 2014 s et forth in table B of the annex to the present decision, which are necessary to satisfy cr itical 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 Parti es to the Protocol agreed “[t]o permit, for the agreed critical-use categorie s for 2015 set forth in table A of the annex to the present decision for each party, subje ct to the conditions set forth in the present decision and in decision Ex.I/4 to the exte nt that those conditions are applicable, the levels of production and consumption for 2015 s et forth in table B of the annex to the present decision, which are necessary to satisfy cr itical 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 modifying the table of critical uses and cri tical users in 40 CFR part 82, subpart A, appendix L based on the amounts permitted in Decision XXIV/5 and Decision XXV/4 and the technical analyses contained in the 2014 and 2015 U.S. nominations that assess data submitted by applicant s to the CUE program. Deleted: “to

Deleted: ...”

Deleted: ...”

Deleted: authorizations*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

11 of 39 EPA sought comment on the technical analyses contai ned in the U.S. nominations (available for public review in the docket) and inf ormation regarding any changes to the registration (including cancellations or registrati ons), use, or efficacy of alternatives that have occurred after the nominations were submitted. EPA did not receive comments on the technical analyses , and comments related to alternatives [that?] are discussed in the next section of the preamble. EPA recognizes that a s the market for alternatives evolves, the thresholds for what constitutes “significant ma rket disruption” or “technical and economic feasibility” may change. Such information has the potential to alter the technical or economic feasibility of an alternative and could thus cause EPA to modify the analysis that underpins EPA’s determination as to which uses and what amounts of methyl bromide qualify for the CUE. EPA is finalizing the lists of approved critical us es and approved critical users as proposed. For 2014, EPA is removing Georgia growers of cucurbits, eggplants, peppers, and tomatoes. These groups did not submit applicati ons for 2014 and therefore were not included in the 2014 U.S. nomination. EPA is removi ng 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 agricult ural sector, and whether significant market disruption would occur as a result. As a res ult of this technical review, the United States Government (USG) determined that certain sec tors or users did not meet the critical use criteria in Decision IX/6 and the Unit ed States therefore did not include them in the 2014 Critical Use Nomination. EPA notified t hese sectors of their status by letters dated February 7, 2012. These sectors are orchard r eplant for California wine grape Formatted: Highlight

Formatted: Highlight Formatted: Highlight Commented [A2]: This does not make sense, maybe the word suggested is missing. Formatted: Highlight*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

12 of 39 growers and Florida growers of eggplants, peppers, and tomatoes. For each of these uses, EPA found that there are technically and economical ly feasible alternatives to methyl bromide. Some sectors that were not included in the 2014 Cri tical Use Nomination submitted supplemental applications for 2014. These sectors are: the California Association of Nursery and Garden Centers; Californ ia stone fruit, table and raisin grape, walnut, and almond growers; ornamental growers in C alifornia and Florida; California strawberry nurseries; stored walnuts; and the U.S. Golf Course Superintendents Association. The USG came to a decision that the se ctors 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 yiel d/quality loss had been demonstrated that warranted seeking a supplemental exemption from the Parties to the Montreal Protocol. For 2015 EPA is removing California wine grape grow ers and Florida growers of eggplants, peppers, tomatoes, and strawberries. The se groups did not submit applications for 2015 and therefore were not included in the 201 5 U.S. nomination. EPA is also removing sectors or users that applied for a critic al use in 2015 but that the United States did not nominate for 2015. As described above EPA c onducted a thorough technical assessment of each application and the USG determin ed that certain sectors or users did not meet the critical use criteria. EPA notified th ese 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. For each o f these uses, EPA found that there are Deleted: authorization*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

13 of 39 technically and economically feasible alternatives to methyl bromide. In addition, EPA is removing entities storing dates as a critical use f or 2015. While the United States nominated this sector for 2015, MBTOC did not recom mend that this sector be a critical use in 2015 and the Parties did not permit 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, tomat o, and strawberry growers; the California Association of Nursery and Garden Center s; California stone fruit, table and raisin grape, walnut, and almond growers; ornamenta l growers in California and Florida; the U.S. Golf Course Superintendents Association; a nd stored walnuts, dried plums, figs, and raisins in California. For those sectors the US G came to a decision that the sectors not nominated have not provided rigorous and convin cing evidence that they meet the criteria laid out in Decision IX/6, and further tha t no new problem or large yield/quality loss had been demonstrated that warranted seeking a supplemental exemption from the Parties to the Montreal Protocol. Finally, EPA is adding information to Column B of a ppendix L to clarify which critical uses are approved for which control period s. As stated in previous rules, the “local township limits prohibiting 1,3-dichloroprop ene” are prohibitions on the use of 1,3-dichloropropene products in cases where local t ownship limits on use of this alternative have been reached. In addition, “pet fo od” 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 pr ovides short (two working days or Deleted: authorize

Deleted: authorization*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

14 of 39 fewer) notification for a purchase or there is a sh ort period after harvest in which to fumigate and there is limited silo availability for using alternatives. D. Critical Use Amounts Table A of the annex to Decision XXIV/5 lists criti cal uses and amounts agreed to by the Parties to the Montreal Protocol for 2014. T he maximum amount of new production and import for U.S. critical uses in 201 4, 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 l ists critical uses and amounts agreed to by the Parties to the Montreal Protocol f or 2015. The maximum amount of new production and import for U.S. critical uses in 201 5, 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. EPA proposed to determine the level of new producti on and import for 2014 and 2015 according to the framework and as modified by the 2013 Rule. EPA is using this approach for the final rule. Under this approach, t he amount of new production for each control period equals the total amount permitted by the Parties to the Montreal Protocol in their Decisions minus any reductions for availab le stocks, carryover, and the uptake of alternatives. These terms (available stocks, carryo ver, and the uptake of alternatives) are discussed in detail below. As established in the 20 13 Rule, EPA is not allocating critical stock allowances. Applying this approach, EPA is al locating allowances to exempt 442,337 kg of new production and import of methyl b romide for critical uses in 2014 and Deleted: authorized*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

15 of 39 376,900 kg of new production and import for 2015. T his is the same amount as the Agency proposed. EPA received three comments related to the proposed amount of allowances. One comment stated that there should be no exemptions f or methyl bromide as it was banned in 2005. While the commenter is correct that the ph aseout occurred in 2005, the Montreal Protocol and the Clean Air Act provide exemptions f or critical uses. EPA is taking this action under the authority of the Clean Air Act to reflect consensus decisions of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer at the Twenty-Fourth and Twenty-Fifth Meetings of the Part ies. A second commenter stated that it is appropriate fo r EPA to reduce the new production/import allocation to reflect the adoptio n of methyl bromide alternatives, including specifically dimethyl disulfide. A third commenter supported the proposal to allocate the full amount permitted by the Parties but stated that EPA should allocate more than the amount requested in the CUN to the extent that the nominations were reduced based on the availability of chloropicrin and iodom ethane. EPA responds to these comments later in this section under “Uptake of Alt ernatives.” In the past, EPA has also made reductions to the CU A amount to account for the amount specifically permitted for research, on the assumption that research amou nts would come from inventory. One commenter stated tha t 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 2014 and 2015 CUNs did not include, and the Par ties did not permit , a separate amount for research, as had been done in prior year s. As discussed in more detail in the Deleted: authorized

Deleted: authorized

Deleted: authorize*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

16 of 39 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. Available Stocks: For 2014 and 2015 the Parties indicated that the Un ited States should use “available stocks,” but did not indicate a minimum amount expected to be taken from stocks. Consistent with EPA’s past pract ice, EPA considered what amount, if any, of the existing stocks may be available to cri tical users during 2014 and 2015. When EPA issued the proposed rule, the latest data repor ted to EPA was from December 31, 2012 and showed there were 627,066 kg of existing s tocks. New data as of December 31, 2013, show that existing stocks declined to 356,561 kg. The Parties to the Protocol recognized in their Dec isions that the level of existing stocks may differ from the level of available stock s. Both Decision XXIV/5 and Decision XXV/4 state that “production and consumption of met hyl bromide for critical uses should be permitted only if methyl bromide is not availabl e in sufficient quantity and quality from existing stocks... .” In addition, the Decisions recognize that “parti es operating under critical-use exemptions should take into acco unt the extent to which methyl bromide is available in sufficient quantity and qua lity from existing stocks....” Earlier Decisions also refer to the use of “quantities of m ethyl 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 r eflect the availability of stocks; however, as explained in previous rulemakings, maki ng such an adjustment is a reasonable exercise of EPA’s discretion under this provision.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

17 of 39 In the 2013 CUE Rule (78 FR 43797, July 22, 2013), EPA established an approach that considered whether a percentage of th e 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 al located for critical use in 2013 for a number of reasons including: a pattern of significa nt underestimation of inventory drawdown; the increasing concentration of critical users in California while inventory remained distributed nationwide; and the recognitio n that the agency cannot compel distributors to sell inventory to critical users. F or further discussion, please see the 2013 CUE Rule. EPA believes these circumstances remain t rue for 2014 and 2015 and proposed to find 0% of the existing inventory avail able for 2014 and 2015. EPA received one comment supporting EPA’s determin ation that 0% of the existing stocks are available for the reasons state d in the proposed rule. The commenter also noted that the manner in which stocks are dist ributed, to existing customers within their geographic areas, further supports a finding that no stocks are available. As discussed in the proposed rule, last year EPA re moved the restriction that critical stock allowances be expended to sell inven tory to critical uses. EPA was unable to calculate the effect this change may have on the remaining inventory and noted that it may be difficult to assess the impact of this chang e simply from updated inventory data given it went into effect in the middle of the 2013 control period. EPA solicited comments on whether, and how, to draw inferences as to the availability of stocks for critical uses based on inventory figures as of Dece mber 31, 2013. EPA did not receive any comments on how to interpret new stocks data in light of the change in policy about*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

18 of 39 CSAs. Therefore, EPA is maintaining its proposed ap proach and finding that 0% of the existing stocks are available for use by critical u sers in 2014 and 2015. Carryover Material: The Parties in paragraph 9 of D ecision XXIV/5 “urge parties operating under critical-use exemptions to put in p lace effective systems to discourage the accumulation of methyl bromide produced under t he 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 en d-users under the critical use exemption in a control period must be reported to E PA the following year. EPA uses these reports to calculate the amount of methyl bro mide 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 tota l level of allowable new production and import in the year following the year of the da ta report. So for example, the amount of carryover from 2012 is factored into the determi nation for 2014. Carryover material (which is produced using critical use allowances) i s not included in EPA’s definition of existing inventory (which applies to pre-2005 mater ial) because this would lead to a double-counting of carryover amounts. All critical use methyl bromide that companies repo rted to be produced or imported in 2012 was sold to end users. 759 MT of c ritical use methyl bromide was produced or imported in 2012. Slightly more than th e 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 proposed to apply a carryover deduction of 0 kg to the new production a mount for 2014, consistent with the Deleted: .”*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

19 of 39 method used in previous CUE rules, and with the for mat in Decision XVI/6 for calculating column L of the U.S. Accounting Framewo rk. Production, import, and sales data for 2013 was not reported to EPA by the time of the proposed rule so EPA assumed 0 kg of carryov er. New data reported to EPA show that 562 MT of critical use methyl bromide was prod uced or imported in 2013. Again, slightly more than the amount produced or imported was actually sold to end-users. Therefore, EPA is applying a carryover deduction of 0 kg to the new production amount for 2014 and 2015. All U.S. Accounting Frameworks for critical use met hyl bromide, including the one for 2013, are available in the public docket fo r this rulemaking. Uptake of Alternatives: EPA considers data on the a vailability 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 wi thdrawn, but not above the amount permitted by the Parties. One comment stated that the alloca tion amounts should not impede the continued adoption and use of methyl bro mide alternatives. EPA believes that considering the uptake of alternatives encourages t he adoption of alternatives. EPA received one comment that dimethyl disulfide (DMDS) is registered in twenty-seven states and that EPA should reduce the new production/import allocation to reflect the success that growers in many parts of t he country have had in transitioning to alternatives, including DMDS. EPA also received one comment supporting the proposal not to make reductions to the allocation due to DMD S as it is not registered in California. Deleted: authorized

Deleted: D Deleted: D Deleted: Dimethyl Disulfide*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

20 of 39 That commenter stated that even if California were to register DMDS, growers would transition cautiously to ensure it works for their circumstances. EPA responds that there has been no change in the r egistration status of DMDS in California, the only state with a pre-plant CUE for 2014 or 2015. Because DMDS is not available in California it would not be appropriate to reduce the allocation amounts. EPA also does not believe that the progress Florida str awberry growers have made in transitioning to alternatives means, as one comment er suggests, that the EPA should reduce the allocation amounts. EPA recognizes that strawberry growers are successfully transitioning to alternatives, and the CUE allocati on for strawberries has been declining as that transition has occurred. EPA considered the transition made to date, and the ability of strawberry growers to further transition, when d eveloping the nomination. Transition rates for alternatives have already been applied fo r permitted critical use amounts through the nomination and decision process. One commenter also stated that EPA should allocate more than the amount requested in the CUN to the extent that the nominat ions were reduced based on the availability of chloropicrin and iodomethane. The c ommenter states that the removal of iodomethane from the U.S. market has increased dema nd for methyl bromide. In addition, the proposed restrictions on the use of c hloropicrin in California will increase the need for methyl bromide in that state. EPA resp onds that the CUNs for 2014 and 2015 did not consider iodomethane as an available a lternative because it had already been removed from the market by the time the nominations were submitted. Therefore, EPA does not believe it is appropriate to increase the critical use allocations based on the lack of availability of iodomethane

. Deleted: has

Deleted: authorized

Deleted: authorization

Deleted: that alternative*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

21 of 39 The proposed rule requested comment on whether prop osed control measures from the California Department of Pesticide Regulat ion on the use of chloropicrin could affect the 2015 control period. EPA did not adjust the allocations for 2014 or 2015 because the changes were only proposed. One comment er stated that EPA should increase the allocation for 2015 above the proposed amount because the need for methyl bromide will increase if California imposes new res trictions. As EPA stated in the proposed rule, EPA views the determination of the t otal allocation, up to the amount permitted by the Parties, as an appropriate exercise of disc retion. The agency will not increase the quantities allocated beyond those permitted by the Parties, but may exercise its discretion to allocate less. In addition, the c ritical use exemption program has historically only relied on final actions when dete rmining the availability of alternatives. Since EPA proposed to allocate the full amount permitted by the Parties and California’s proposed measures are not final, EPA is not increas ing the allocation. 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, the allocation rule is based on the current status of a lternatives. Therefore, EPA has not based the allocation amounts for 2014 or 2015 on any anti cipated impacts of that proposal on methyl bromide use. EPA is not making any other modifications to CUE am ounts to account for availability of alternatives. Rates of transition t o alternatives have already been applied for permitted 2014 and 2015 critical use amounts through the nom ination and decision
process. Deleted: authorized

Deleted: authorized

Deleted: authorized

Deleted: authorized Deleted: authorization*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

22 of 39 Allocation Amounts: EPA is allocating critical use allowances for new production or import of methyl bromide equivalent to 442,337 k g in 2014 and 376,900 kg in 2015 to the four companies that hold baseline allowances in proportion to their baseline amounts. Paragraph 3 of Decision XXIV/5 and paragraph 5 of D ecision XXV/4 state that “parties shall endeavour to license, permit, authorize or al locate 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 us es. 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 alloca ting critical use allowances, including a sector-by-sector approach. The agency e valuated various options based on their economic, environmental, and practical effect s. 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 i n the preamble to the 2009 CUE rule (74 FR 19894), and because of the limited number of permitted uses, the agency believes that under the approach adopted in the Framework Rule, t he actual critical use will closely follow the sector breakout listed in the Parties’ d ecisions. E. Amending the Critical Stock Allowance Framework The 2013 Rule removed the provisions at § 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 Deleted: .”.

Deleted: authorized*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

23 of 39 those restrictions. As a result of the changes in t he 2013 CUE Rule, there are no restrictions under the Clean Air Act on the sale of pre-phaseout material to critical users. EPA took comment in the proposed rule on removing a ll of the remaining references to critical stock allowances in 40 CFR P art 82. EPA believes these provisions are no longer necessary if the agency is not alloca ting separate critical stock allowances. EPA received one comment in support of removing tho se provisions, as it would avoid confusion in the future. EPA is finalizing the rule as proposed. Specifically, EPA is removing the definitions of “critical stock allowan ce,” “critical stock allowance holder,” and “unexpended critical stock allowance” from § 82.3. EPA is removing provisions related to the intercompany transfer of critical st ock allowances at § 82.12(a) 1 and the exchange of critical use allowances for critical st ock allowances at § 82.12(e). EPA is also removing the reporting and recordkeeping requi rements related to critical stock allowances in § 82.13(f)(3) and (g)(4). EPA notes that the agency i s maintaining the requirement to annually report remaining pre-phaseo ut inventory. F. Emergency Uses In 2013 EPA held discussions with USDA and the Depa rtment of State on tools that could potentially address immediate and unfore seen needs for methyl bromide including whether emergency situations may arise th at warrant the use of methyl bromide consistent with the treaty, recognizing that emerge ncy uses are not intended as a replacement for CUE uses. In August, EPA held a sta keholder meeting to present, among other things, the findings of those discussions and noted that the three agencies had not

1 This provision allows any critical stock allowance holder (“transferror”) to transfer critical stock allowances to any critical stock allowance holder o r any methyl bromide producer, importer, distributo r, or third party applicator (“transferee”).*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

24 of 39 yet identified any specific situations that could n ot be addressed by current mechanisms. The U.S. government is committed to using flexibili ty in the Protocol’s existing mechanisms as an avenue to address changes in natio nal circumstances that affect the transition to alternatives. EPA solicited comments on specific emergency situat ions that may necessitate the use of methyl bromide, consistent with the requirem ents of the Montreal Protocol, and which could be difficult to address using current t ools and authorities. EPA received one comment which discussed “hand-held probe” treatment s for outbreaks of Oak Root Fungus ( Armillaria ) in fruit and nut orchards. The commenter states t hat the use is limited in scope, methyl bromide is the only treatm ent proven to have long term efficacy, and the treatment is critical to the viability of i nfested orchards. The commenter stated that as a threshold matter, there must be clear and objective criteria to establish the existence of an emergency situation and the basis f or approval. In addition the process to meet a particular emergency must be efficient so as to enable all stakeholders to meet the need before the emergency has caused significant da mage. Clear and objective criteria would be required to e stablish the existence of an emergency situation and the basis for approval. Dec ision IX/7 states that the Secretariat and the TEAP will evaluate the use according to the critical use criteria in IX/6. Therefore, at a minimum, any potential emergency us e must also be able to qualify as a critical use. The example of Armillaria raised by the commenter has also been raised by applicants for critical uses. EPA has considered th is situation but has not nominated it as a critical use because the agency does not have suf ficient information to demonstrate either the efficacy of methyl bromide or that the a lternatives are not effective. Deleted: circumstance*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

25 of 39 G. The Criteria in Decisions IX/6 and Ex. I/4 Decision XXIV/5 and Decision XXV/4 call on Parties to apply the conditions set forth in Decision Ex. I/4 (to the extent applicable) and the criteria in Decision IX /6 paragraph 1 to exempted critical uses for the 2014 and 2015 control periods. A discussion of the agency’s application of the criteria in para graph 1 of Decision IX/6 appears in sections II.A., and II.C. of this preamble. EPA sol icited 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 cr itical use meets the criteria in paragraph 1 of Decision IX/6, apart from the criter ion 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 II.D. of this preamble. The agency has previously provided its interpretation o f the criterion in Decision IX/6 paragraph (1)(a)(i) regarding the presence of signi ficant 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 doc ket 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 interpretati on of this term has several dimensions, including look ing at potential effects on both demand and supply for a commodity, evaluating potential lo sses 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 ec onomically feasible alternatives under Deleted: and criteria listed in

Deleted: s Deleted: IX Commented [A3]: For consistency with the wording of the two decisions.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

26 of 39 the circumstance of the nomination; efforts to mini mize use and emissions of methyl bromide where technically and economically feasible ; the development of research and transition plans; and the requests in Decision Ex. I/4 paragraphs 5 and 6 that Parties consider and implement MBTOC recommendations, where feasible, on actions a Party may take to reduce the critical uses of methyl bromide and include information on the methodology they use to determine economic feasibil ity. Some of these criteria are evaluated in other docu ments. The United States has considered the adoption of alternatives and researc h into methyl bromide alternatives (see Decision IX/6 paragraph (1)(b)(iii)) in the develop ment of the National Management Strategy submitted to the Ozone Secretariat in Dece mber 2005, updated in October 2009. The National Management Strategy addresses all of t he 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 o utdoor field experiment that requires methyl bromide as a standard control treat ment 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 crit ical use process. Research on the crops shown in the table in Appendix L to subpart A remai ns a critical use of methyl bromide. While researchers may continue to use newly produce d 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. Deleted: reductions in Deleted: Deleted: use*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

27 of 39 H. 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 tec hniques that promote environmental protection, whenever technically and economically f easible. EPA developed a comprehensive strategy for risk mitigation through the 2009 Reregistration Eligibility Decision (RED) 2 for methyl bromide, available in the docket to thi s rulemaking, which is implemented through restrictions on how methyl brom ide products can be used. This approach means that methyl bromide labels require t hat treated sites be tarped, except for California orchard replant where EPA instead requir es deep (18 inches or greater) shank applications. The RED also incorporated incentives for applicators to use high-barrier tarps, such as virtually impermeable film, by allow ing 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 a pplication 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 Na tional Institute for Food and Agriculture (USDA-NIFA) to promote emission reducti on techniques. The federal government has invested substantial resources into developing and implementing best practices for methyl bromide use, including emissio n reduction practices. The Cooperative Extension System, which receives some s upport from USDA-NIFA provides

2 Additional information on risk mitigation measures for soil fumigants is available at http://epa.gov/pesticides/reregistration/soil_fumig ants/*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

28 of 39 locally appropriate and project-focused outreach ed ucation regarding methyl bromide transition best practices. Additional information o n 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 eve ry effort to minimize overall emissions of methyl bromide. EPA also encou rages researchers and users who are using techniques to minimize emissions of methyl bromide to inform EPA of their experiences and to provideinformation on such techniques with their critical use applications. III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and R eview and Executive Order 13563: Improving Regulation and Regulatory Review Under Executive Order (EO) 12866 (58 FR 51735, Oct ober 4, 1993), this final rule is a “significant regulatory action” because i t was deemed to raise novel legal or policy issues. Accordingly, EPA submitted this acti on to the Office of Management and Budget (OMB) for review under Executive Orders 1286 6 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 co llection burden. The application, recordkeeping, and reporting requireme nts have already been established under previous critical use exemption rulemakings. This rule does remove requirements Deleted: such Deleted: techniques Deleted: such*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

29 of 39 related to the recordkeeping and reporting of criti cal stock allowances which would decrease the information collection burden. The Off ice of Management and Budget (OMB) has previously approved the information colle ction requirements contained in the existing regulations at 40 CFR part 82 under the pr ovisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB co ntrol 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 rulemakin g requirements under the Administrative Procedure Act or any other statute u nless the agency certifies that the rule will not have a significant economic impact on a su bstantial number of small entities. Small entities include small businesses, small orga nizations, and small governmental jurisdictions. For purposes of assessing the impact s of this rule on small entities, small entity is defined as: (1) a small business as defin ed 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 independentl y owned and operated and is not dominant in its field. Category NAICS code NAICS Small business size standard (in number of employees or millions of dollars) Agricultural production 1112- Vegetable and Melon farming $0.75 million

1113- Fruit and Nut Tree Farming 1114- Greenhouse, Nursery, and Floriculture Production*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

30 of 39 Storage Uses 115114- Postharvest Crop activities (e xcept

Cotton Ginning) $7 million 311211- Flour Milling 500 employees 311212- Rice Milling 500 employees 493110- General Warehousing and Storage $25.5 milli on 493130- Farm Product Warehousing and Storage $25.5 million Distributors and Applicators 115112- Soil Preparation, Planting and

Cultivating $7 million

Producers and Importers 325320- Pesticide and Other Agricultural

Chemical Manufacturing 500 employees

Agricultural producers of minor crops and entities that store agricultural commodities are categories of affected entities tha t contain small entities. This rule only affects entities that applied to EPA for an exempti on 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 t o 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 contro l period. EPA revised this estimate in 2011 down to 1,800 end users of critical use met hyl bromide. EPA believes that the number continues to decline as growers cease applyi ng for the critical use exemption. Since many applicants did not provide information o n 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 sma ll businesses. In addition, other categories of affected entities do not contain smal l businesses based on the above description. After considering the economic impacts of this rul e on small entities, I certify that this action will not have a significant economic im pact on a substantial number of small entities. In determining whether a rule has a signi ficant economic impact on a substantial*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

31 of 39 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 entit ies.” (5 U.S.C. 603- 604). Thus, an agency may certify that a rule will not have a sign ificant economic impact on a substantial number of small entities if the rule re lieves a regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. Since this rule allows the use of methyl bromide for approved critical uses after the phaseout date of January 1, 2005, this action confers a benefit to u sers of methyl bromide. EPA estimates in the Regulatory Impact Assessment found in the do cket 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 re lieve 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 ac tion imposes no enforceable duty on any State, local or tribal governments or the priva te sector. Instead, this action provides an exemption for the manufacture and use of a phase d out compound and would not impose any new requirements on any entities. Theref ore, this action is not subject to the requirements of sections 202 or 205 of the UMRA. Th is action is also not subject to the*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

32 of 39 requirements of section 203 of UMRA because it cont ains no regulatory requirements that might significantly or uniquely affect small g overnments. 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 b etween the national government and the States, or on the distribution of power and respons ibilities 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 communica tions between EPA and State and local governments, EPA specifically solicited comme nt on this action from State and local officials. F. Executive Order 13175: Consultation and Coordina tion 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 do es 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 solicite d additional comment on this action from tribal officials. G. Executive Order No. 13045: Protection of Childre n from Environmental Health and Safety Risks*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

33 of 39 This action is not subject to EO 13045 (62 FR 1988 5, 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 ad dressed by this action present a disproportionate risk to children. This rule affect s the level of environmental protection equally for all affected populations without having any disproportionately high and adverse human health or environmental effects on an y population. H. Executive Order 13211: Actions that Significantl y 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 do es 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 voluntary consensus standards in its regulatory act ivities unless to do so would be inconsistent with applicable law or otherwise impra ctical. Voluntary consensus standards are technical standards (e.g., materials specificat ions, test methods, sampling procedures, and business practices) that are developed or adopt ed by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, thro ugh OMB, explanations when the*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

34 of 39 agency decides not to use available and applicable voluntary consensus standards. This rulemaking does not involve technical standards. Th erefore, EPA did not consider the use of any voluntary consensus standards. J. Executive Order 12898: Federal Actions to Addres s Environmental Justice in Minority Populations and Low-Income Populations Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1 994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by la w, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects o f their programs, policies, and activities on minority populations and low-income p opulations in the United States. EPA has determined that this rule does not have dis proportionately high and adverse human health or environmental effects on mi nority or low-income populations, because it affects the level of environmental prote ction equally for all affected populations without having any disproportionately h igh and adverse human health or environmental effects on any population, including any minority or low-income population. Any ozone depletion that results from t his rule will impact all affected populations equally because ozone depletion is a gl obal environmental problem with environmental and human effects that are, in genera l, 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 199 6, generally provides that before a*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

35 of 39 rule may take effect, the agency promulgating the r ule must submit a rule report, which includes a copy of the rule, to each House of the C ongress and to the Comptroller General of the United States. EPA will submit a rep ort containing this rule and other required information to the U.S. Senate, the U.S. H ouse of Representatives, and the Comptroller General of the United States prior to p ublication 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, Impo rts, Ozone depletion.

Dated:

Gina McCarthy, Administrator.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

36 of 39 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. Amend § 82.3 by: a. Removing the definition of “Critical stock allow ance (CSA)”; b. Removing the definition of “Critical stock allow ance (CSA) holder”; and c. Removing the definition of “Unexpended critical stock allowance (CSA)”.

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

. * * * * * (c) * * * (1) * * *
Company 2014 Critical use

allowances for pre-plant uses* (kilograms) 2014 Critical use

allowances for post-harvest uses* (kilograms) 2015 Critical use

allowances for pre-plant uses* (kilograms) 2015 Critical use

allowances for post-harvest uses* (kilograms) Great Lakes Chemical Corp. A Chemtura Company 252,236 16,572 227,073 1,969

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*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

37 of 39 * For production or import of Class I, Group VI con trolled substance exclusively for the Pre-Plant or Post-Harvest uses specified in appendi x L to this subpart for the appropriate control period.
* * * * *

4. Amend § 82.12 by revising paragraph (a) and remo ving paragraph (e) to read as follows: § 82.12 Transfers of allowances for class I control led substances (a) Inter-company transfers. (1) Until January 1, 1 996, 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 (“t ransferee”) any amount of the transferor's consumption allowances or production a llowances, and effective January 1, 1995, for all class I controlled substances any per son (“transferor”) may transfer to any other person (“transferee”) any amount of the trans feror'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 th an 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 Januar y 1, 2005, any critical use allowance holder (“transferor”) may transfer critical use all owances to any other person (“transferee”).
* * * * *

5. Amend § 82.13 by:*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

38 of 39 a. revising paragraphs (f)(3)(iv) and (g)(4)(vii); and b. removing and reserving paragraphs (bb)(2)(iv) an d (cc)(2)(iv) The revised text reads as follows: § 82.13 Recordkeeping and reporting requirements fo r class I controlled substances.
* * * * * (f) * * * (3) * * * (iv) The producer's total of expended and unexpende d production allowances, consumption allowances, Article 5 allowances, criti cal use allowances (pre-plant), critical use allowances (post-harvest), and amount of essent ial-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 unex pended consumption allowances by chemical as of the end of that quarter and the tota l sum of expended and unexpended critical use allowances (pre-plant) and unexpended critical use allowances (post-harvest);
* * * * *

6. Amend Subpart A by revising Appendix L to read a s follows: APPENDIX L TO SUBPART A OF PART 82 – APPROVED CRITI CAL USES AND LIMITING CRITICAL CONDITIONS FOR THOSE USES FOR THE 2014 AND 2015 CONTROL PERIODS*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

39 of 39 Column A Column B Column C
Approved Critical Uses Approved Critical User, Location

of Use, and Control Period Limiting Critical Conditions that exist, or that the approved critical user reasonably expects could arise without methyl bromide fumigation: PRE-PLANT USES Strawberry Fruit California growers. Control periods

2014 and 2015. Moderate to severe black root rot or crown rot Moderate to severe yellow or purple nutsedge infestation Moderate to severe nematode infestation Local township limits prohibiting 1,3- dichloropropene POST

- HARVEST USES Food Processing (a) Rice millers in the U.S. who are

members of the USA Rice Millers Association. Control period 2014. Moderate to severe beetle, weevil, or moth infestation Presence of sensitive electronic equipment subject to corrosion (b) Pet food manufacturing facilities

in the U.S. who are members of the Pet Food Institute. Control period 2014. Moderate to severe beetle, moth, or cockroach infestation Presence of sensitive electronic equipment subject to corrosion (c) Members of the North American

Millers’ Association in the U.S. Control period 2014. Moderate to severe beetle infestation Presence of sensitive electronic equipment subject to corrosion Commodities California entities storing walnuts,

dried plums, figs, raisins, and dates (in Riverside county only) in California. Control period 2014. 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 of Smithfield Inc. Control periods 2014 and 2015. Red legged ham beetle infestation Cheese/ham skipper infestation Dermestid beetle infestation Ham mite infestation