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 comments on the CUE MeBr rule. Let’s touch base in the morning as to 

whether we need to have the conference call. Have a good evening! Amanda 
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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 2015 Critical Use Exemption from 

the Phaseout of Methyl Bromide 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Final rule. 

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

qualify for the critical use exemption 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 

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 Parties. EPA is also amending the 

regulatory framework to remove provisions related to 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 listed on the www.regulations.gov 

website. Although listed in the index, some information is not publicly available, e.g., 
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confidential business information (CBI) or other information whose disclosure is 

restricted by statute. Certain other material, such as copyrighted material, is not placed on 

the Internet and is publicly available only in hard copy form. Publicly available docket 

materials are available either electronically through www.regulations.gov or in hard copy 

at the Air and Radiation Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution 

Ave., NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding legal holidays. The telephone number for the 

Public Reading Room is (202) 566-1744, and the telephone number for the Air and 

Radiation Docket is (202) 566-1742. 

FOR FURTHER INFORMATION CONTACT: For further information about this 

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

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

Stratospheric Protection Division, Stratospheric Program Implementation Branch 

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

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

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

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

science of ozone layer depletion, and related topics. 

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

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

VI controlled substance) for critical uses during calendar 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 
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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 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 for 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 earlier than 30 days after they are 

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

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

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

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

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

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

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

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

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

an exemption for limited critical uses during 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? 
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 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 Review 

 B. Paperwork Reduction Act 

 C. Regulatory Flexibility Act 

 D. Unfunded Mandates Reform Act 

 E. Executive Order 13132: Federalism 

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

Governments 

 G. Executive Order 13045: Protection of Children from Environmental 

Health and Safety Risks 

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

Distribution, or Use 

 I. National Technology Transfer and Advancement Act 

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

in Minority Populations and Low-Income Populations 

 K. Congressional Review Act 

I. General Information 

 Entities and categories of entities potentially regulated by this action include 

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

methyl bromide; and users of methyl bromide that applied for the 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 action. 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 
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questions regarding the applicability of this action to a particular entity, consult the 

person listed in the preceding section. 

II. What Is the Critical Use Exemption Process? 

A. Background of the Process 

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

provision. At the Ninth Meeting of the Parties in 1997, the Parties established the criteria 

for an exemption in Decision IX/6. In that Decision, the Parties agreed that “a use of 

methyl bromide should qualify as ‘critical’ only if the nominating Party determines that: 

(i) The specific use is critical because the lack of availability of methyl bromide for that 

use would result in a significant market disruption; and (ii) There are no technically and 

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

from the standpoint of environment and 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 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 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 

Deleted: theret

Deleted: Parties decided
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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. 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 take Decisions on critical use 

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

for the exempted critical uses. EPA then provides an opportunity for public comment on 

the amounts and specific uses of methyl bromide that the agency is proposing to exempt. 

Deleted: the authorization of
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 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 critical uses and amounts authorized in this rule 

reflect the analyses 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 critical uses and amounts 

authorized in this rule reflect the analyses contained in those documents. 
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B. How Does This Rule Relate to Previous Critical Use Exemption Rules? 

 The December 23, 2004, Framework Rule established the framework for the 

critical use exemption program in the United States, including definitions, prohibitions, 

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, this rule authorizes critical uses for both 2014 and 2015. 

EPA proposed to do so to expedite the issuance of 2015 allowances. EPA has received 

repeated comments to previous CUE rules that a failure 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 date could cause difficulties for growers 

as well as manufacturers and distributors. EPA received one comment supporting the 

promulgation of CUE rules on a two-year basis. While 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 
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issued for the first control period later than stakeholders 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 without affecting the rule’s schedule. 

Today’s 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. As discussed in the 2013 Rule, EPA removed 

the requirement for CSAs because the restriction was less relevant as few critical uses 

remained and because changes in labeling would make remaining inventory practically 

inaccessible. This rule removes all of the remaining provisions in 40 CFR part 82 related 

to critical stock allowances. 

C. Critical Uses 

Deleted: international authorizations of
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 In Decision XXIV/5, taken in November 2012, the Parties 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, 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 modifying the table of critical uses and critical 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 applicants to the CUE program. 

Deleted: “to

Deleted: ...”

Deleted: ...”

Deleted: authorizations
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EPA sought comment on the technical analyses contained in the U.S. nominations 

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

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

have occurred after the 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 as the market for alternatives evolves, 

the thresholds for what constitutes “significant market disruption” or “technical and 

economic feasibility” may change. Such information has the potential to alter the 

technical or economic feasibility of an alternative and could thus cause EPA to modify 

the analysis that underpins EPA’s determination as to which uses and what amounts of 

methyl bromide qualify for the CUE. 

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

proposed. For 2014, EPA is removing 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 removing 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 

Formatted: Highlight

Formatted: Highlight

Formatted: Highlight

Commented [A2]: This does not make sense, maybe the word 

suggested is missing. 

Formatted: Highlight
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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. 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 exemption from the Parties to the Montreal 

Protocol. 

For 2015 EPA is removing 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 also 

removing 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. For each of these uses, EPA found that there are 

Deleted: authorization
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technically and economically feasible alternatives to methyl bromide. In addition, EPA is 

removing 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 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, 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. 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 exemption from the 

Parties to the Montreal Protocol. 

Finally, EPA is adding information to Column B of appendix L to clarify which 

critical uses are approved for which control periods. As stated in previous rules, 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 

Deleted: authorize

Deleted: authorization
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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. 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 in 2014, 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 in 2015, 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 production 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, the 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 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 is not allocating critical 

stock allowances. Applying this approach, EPA is allocating allowances to exempt 

442,337 kg of new production and import of methyl bromide for critical uses in 2014 and 

Deleted: authorized
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376,900 kg of new production and import for 2015. This 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 for methyl bromide as it was banned 

in 2005. While the commenter is correct that the phaseout occurred in 2005, the Montreal 

Protocol and the Clean Air Act provide exemptions for 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 Parties. 

A second commenter stated that it is appropriate for EPA to reduce the new 

production/import allocation to reflect the adoption 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 iodomethane. EPA responds to these 

comments later in this section under “Uptake of Alternatives.” 

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

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

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

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

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

the 2014 and 2015 CUNs did not include, and the Parties did not permit, a separate 

amount for research, as had been done in prior years. As discussed in more detail in the 

Deleted: authorized

Deleted: authorized

Deleted: authorize
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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 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 considered what amount, if 

any, of the existing stocks may be available to critical users during 2014 and 2015. When 

EPA issued the proposed rule, the latest data reported to EPA was from December 31, 

2012 and showed there were 627,066 kg of existing stocks. New data as of December 31, 

2013, show that existing stocks declined to 356,561 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. 
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 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 and 

proposed to find 0% of the existing inventory available for 2014 and 2015. 

 EPA received one comment supporting EPA’s determination that 0% of the 

existing stocks are available for the reasons stated in the proposed rule. The commenter 

also noted that the manner in which stocks are distributed, 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 removed the restriction that 

critical stock allowances be expended to sell inventory 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 change 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 December 31, 2013. EPA did not receive 

any comments on how to interpret new stocks data in light of the change in policy about 
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CSAs. Therefore, EPA is maintaining its proposed approach and finding that 0% of the 

existing stocks are available for use by critical users in 2014 and 2015. 

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 proposed to apply a 

carryover deduction of 0 kg to the new production amount for 2014, consistent with the 

Deleted: .”
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method used in previous CUE rules, and with the format in Decision XVI/6 for 

calculating column L of the U.S. Accounting Framework. 

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 carryover. New data reported to EPA show 

that 562 MT of critical use methyl bromide was produced 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 methyl bromide, including the 

one for 2013, are available in the public docket for this rulemaking. 

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 

permitted by the Parties. One comment stated that the allocation amounts should not 

impede the continued adoption and use of methyl bromide alternatives. EPA believes that 

considering the uptake of alternatives encourages the 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 the 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 DMDS 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 *** 

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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 registration 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 strawberry growers have made in 

transitioning to alternatives means, as one commenter suggests, that the EPA should 

reduce the allocation amounts. EPA recognizes that strawberry growers are successfully 

transitioning to alternatives, and the CUE allocation for strawberries has been declining 

as that transition has occurred. EPA considered the transition made to date, and the ability 

of strawberry growers to further transition, when developing the nomination. Transition 

rates for alternatives have already been applied for 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 nominations were reduced based on the 

availability of chloropicrin and iodomethane. The commenter states that the removal of 

iodomethane from the U.S. market has increased demand for methyl bromide. In 

addition, the proposed restrictions on the use of chloropicrin in California will increase 

the need for methyl bromide in that state. EPA responds that the CUNs for 2014 and 

2015 did not consider iodomethane as an available alternative 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
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The proposed rule requested comment on whether proposed control measures 

from the California Department of Pesticide Regulation 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 commenter 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 restrictions. As EPA stated in the 

proposed rule, EPA views the determination of the total allocation, up to the amount 

permitted by the Parties, as an appropriate exercise of discretion. 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 critical use exemption program has 

historically only relied on final actions when determining 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 increasing 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 alternatives. Therefore, EPA has not based 

the allocation amounts for 2014 or 2015 on any anticipated impacts of that proposal on 

methyl bromide use. 

EPA is not making any other modifications to CUE amounts to account for 

availability of alternatives. Rates of transition to alternatives have already been applied 

for permitted 2014 and 2015 critical use amounts through the nomination and decision

process. 

Deleted: authorized

Deleted: authorized

Deleted: authorized

Deleted: authorized

Deleted: authorization
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 Allocation Amounts: EPA is allocating critical use allowances for new production 

or import of methyl bromide equivalent to 442,337 kg 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 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 permitted uses, the agency believes that 

under the approach adopted in the Framework Rule, the actual critical use will closely 

follow the sector breakout listed in the Parties’ decisions. 

E. 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
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those restrictions. As a result of the changes in the 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 all of 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. 

EPA received one comment in support of removing those 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 allowance,” “critical stock allowance holder,” 

and “unexpended critical stock allowance” from § 82.3. EPA is removing provisions 

related to the intercompany transfer of critical stock allowances at § 82.12(a)1

 and the 

exchange of critical use allowances for critical stock allowances at § 82.12(e). EPA is 

also removing the reporting and recordkeeping requirements related to critical stock 

allowances in § 82.13(f)(3) and (g)(4). EPA notes that the agency is maintaining the 

requirement to annually report remaining pre-phaseout inventory. 

F. Emergency Uses 

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 

 

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”). 
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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 circumstances that affect the 

transition to alternatives. 

EPA solicited comments on specific emergency situations that may necessitate the 

use of methyl bromide, consistent with the requirements of the Montreal Protocol, and 

which could be difficult to address using current tools and authorities. EPA received one 

comment which discussed “hand-held probe” treatments for outbreaks of Oak Root 

Fungus (Armillaria) in fruit and nut orchards. The commenter states that the use is 

limited in scope, methyl bromide is the only treatment proven to have long term efficacy, 

and the treatment is critical to the viability of infested 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 for 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 damage. 

Clear and objective criteria would be required to establish the existence of an 

emergency situation and the basis for approval. Decision 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 use 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 this situation but has not nominated it as 

a critical use because the agency does not have sufficient information to demonstrate 

either the efficacy of methyl bromide or that the alternatives are not effective. 

Deleted: circumstance
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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 paragraph 1 of Decision IX/6 appears in 

sections II.A., and II.C. of this preamble. EPA solicited comments on the technical and 

economic basis for determining that the uses listed in this rule meet the criteria of the 

critical use exemption. The CUNs detail how each 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 II.D. of this preamble. The 

agency has previously provided its interpretation of the criterion in Decision IX/6 

paragraph (1)(a)(i) regarding the presence of significant market disruption in the absence 

of an exemption. EPA refers 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 

Deleted: and criteria listed in

Deleted: s

Deleted: IX

Commented [A3]: For consistency with the wording of the two 

decisions. 
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the circumstance of the nomination; efforts to minimize use and emissions of methyl 

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

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

consider and implement MBTOC recommendations, where feasible, on actions a Party 

may take to reduce the critical uses of methyl bromide and include information on the 

methodology they use to determine economic feasibility. 

 Some of these criteria are evaluated in other documents. 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. 

Deleted: reductions in

Deleted: 

Deleted: use
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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 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)2

 for methyl bromide, available in the docket to this rulemaking, which is 

implemented through restrictions on how methyl bromide products can be used. This 

approach means 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, 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 

 

2

 Additional information on risk mitigation measures for soil fumigants is available at 

http://epa.gov/pesticides/reregistration/soil_fumigants/ 
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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 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 Review and Executive Order 13563: 

Improving Regulation and Regulatory Review 

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

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

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

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

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

have been documented in the docket for this action.

B. Paperwork Reduction Act 

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

application, recordkeeping, and reporting requirements have already been established 

under previous critical use exemption rulemakings. This rule does remove requirements 

Deleted: such

Deleted: techniques 

Deleted: such 
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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. 

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 
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Storage Uses 115114- Postharvest Crop activities (except 

Cotton Ginning) 

$7 million 

311211- Flour Milling 500 employees 

311212- Rice Milling 500 employees 

493110- General Warehousing and Storage $25.5 million 

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 that contain small entities. This rule only 

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

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

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

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

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

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

number continues to decline as growers cease applying for 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 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 
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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 allows the use of methyl bromide for approved critical uses after the phaseout date of 

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

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

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

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

We have therefore concluded that this rule would relieve regulatory burden for all small 

entities. 

D. Unfunded Mandates Reform Act 

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

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

or tribal governments or the private sector. The action imposes no enforceable duty on 

any State, local or tribal governments or the private sector. Instead, this action provides 

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

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

requirements of sections 202 or 205 of the UMRA. This action is also not subject to the 
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requirements of section 203 of UMRA because it contains no regulatory requirements 

that might significantly or uniquely affect small governments. 

E. Executive Order 13132: Federalism 

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

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

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

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

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

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

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

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

local officials. 

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

Governments 

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

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

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

duties on communities of Indian tribal governments. Thus, Executive Order 13175 does 

not apply to this action. EPA specifically solicited additional comment on this action 

from tribal officials. 

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

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

not economically significant as defined in EO 12866, and because the Agency does not 

believe the environmental health or safety risks addressed by this action present a 

disproportionate risk to children. This rule affects the level of environmental protection 

equally for all affected populations without having any disproportionately high and 

adverse human health or environmental effects on any population. 

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

or Use 

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

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

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

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

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

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

effects. 

I. National Technology Transfer and Advancement Act

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

(“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use 

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

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

of any voluntary consensus standards. 

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

Populations and Low-Income Populations 

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

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

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

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

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

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

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

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

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

populations without having any disproportionately high and adverse human health or 

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

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

populations equally because ozone depletion is a global environmental problem with 

environmental and human effects that are, in general, equally distributed across 

geographical regions in the United States. 

K. Congressional Review Act 

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

Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a 
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rule may take effect, the agency promulgating the rule must submit a rule report, which 

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

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

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

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

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

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

effective [Insert date of publication]. 

List of Subjects in 40 CFR Part 82

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

Dated: 

Gina McCarthy, 

Administrator. 

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

PART 82- PROTECTION OF STRATOSPHERIC OZONE

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

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

2. Amend § 82.3 by: 

a. Removing the definition of “Critical stock allowance (CSA)”; 

b. Removing the definition of “Critical stock allowance (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 critical 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 
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* 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. 

* * * * * 

4. Amend § 82.12 by revising paragraph (a) and removing paragraph (e) to read as 

follows: 

§ 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”). 

* * * * * 

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) and (cc)(2)(iv) 

The revised text reads as follows: 

§ 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); 

* * * * * 

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 
*** 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