1

Arling, Jeremy

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

Sent: Monday, December 23, 2013 4:58 PM

To: Donaldson, David; Arling, Jeremy; InteragencyReviews; Owens, Nicole

Subject: Summary of interagency comments under EO 12866 and 13563 -- Methyl Bromide CUE for 

2014 and 2015

Attachments: SummaryofinteragencycommentsunderEO12866_13563_MethylBromideCUE2060-

AR80NPRM201311251.docx

Attached please find a summary of interagency comments under EOs 12866 and 13563 regarding the Methyl Bromide 

critical use exemption proposed rule for 2014 and 2015. Thanks and please let me know if you have any questions.

Nathan
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6560-50-P

EO12866MethylBromideCUE2060-AR80NPRM20131125.doc

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2011-0431; FRL-XXXX]

RIN: 2060-AR80

Protection of Stratospheric Ozone: The 2014 and 2015 Critical Use Exemption from 

the Phaseout of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing uses that qualify for the critical use exemption (CUE) 

and the amount of methyl bromide that may be produced or imported for those uses for 

both the 2014 and 2015 control periods. EPA is also proposing to amend the regulatory 

framework to remove provisions related to sale of pre-phaseout inventory for critical 

uses. EPA is proposing this action under the authority of the Clean Air Act to reflect 

consensus decisions taken by the Parties to the Montreal Protocol on Substances that 

Deplete the Ozone Layer at the Twenty-Fourth and Twenty-Fifth Meetings of the Parties. 

EPA is seeking comment on the list of critical uses, on EPA’s determination of the 

specific amounts of methyl bromide that may be produced and imported for those uses, 

and on the amendments to the regulatory framework.

DATES: Comments must be submitted by [INSERT DATE 45 DAYS AFTER DATE 

OF PUBLICATION IN THE FEDERAL REGISTER]. Any party requesting a public 

hearing must notify the contact person listed below by 5 p.m. Eastern Standard Time on 
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[INSERT DATE 5 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL 

REGISTER]. If a hearing is requested it will be held on [INSERT DATE 15 DAYS 

AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. EPA will post 

information regarding a hearing, if one is requested, on the Ozone Protection website 

www.epa.gov/ozone/strathome.html. Persons interested in attending a public hearing 

should consult with the contact person below regarding the location and time of the 

hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR2011-0431, by one of the following methods:

 www.regulations.gov: Follow the on-line instructions for submitting comments.

 Email: a-and-r-Docket@epa.gov

 Fax: (202) 566-9744

 Phone: (202) 566-1742

 U.S. Mail: Docket EPA-HQ-OAR-2011-0431, U.S. Environmental Protection 

Agency, EPA Docket Center, Air and Radiation Docket, Mail Code 28221T, 1200 

Pennsylvania Avenue, NW, Washington, DC 20460 

 Hand Delivery or Courier: Docket EPA-HQ-OAR-2011-0431, EPA Docket 

Center - Public Reading Room, EPA West Building, Room 3334, 1301 

Constitution Avenue, NW, Washington, DC 20004. Such deliveries are only 

accepted during the Docket’s normal hours of operation, and special arrangements 

should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-2011-0431. EPA's 

policy is that all comments received will be included in the public docket without change 
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and may be made available online at www.regulations.gov, including any personal 

information provided, unless the comment includes information claimed to be 

Confidential Business Information (CBI) or other information whose disclosure is 

restricted by statute. Do not submit information that you consider to be CBI or otherwise 

protected through www.regulations.gov or e-mail. The www.regulations.gov website is 

an “anonymous access” system, which means EPA will not know your identity or contact 

information unless you provide it in the body of your comment. If you send an e-mail 

comment directly to EPA without going through www.regulations.gov your e-mail 

address will be automatically captured and included as part of the comment that is placed 

in the public docket and made available on the Internet. If you submit an electronic 

comment, EPA recommends that you include your name and other contact information in 

the body of your comment and with any disk or CD-ROM you submit. If EPA cannot 

read your comment due to technical difficulties and cannot contact you for clarification, 

EPA may not be able to consider your comment. Electronic files should avoid the use of 

special characters, any form of encryption, and be free of any defects or viruses. For 

additional information about EPA’s public docket visit the EPA Docket Center homepage 

at http://www.epa.gov/epahome/dockets.htm.

Docket: All documents in the docket are listed on the www.regulations.gov web site. 

Although listed in the index, some information is not publicly available, e.g., CBI or 

other information whose disclosure is restricted by statute. Certain other material, such as 

copyrighted material, is not placed on the Internet and will be publicly available only in 

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

through www.regulations.gov or in hard copy at the Air and Radiation Docket, EPA/DC, 
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EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The Public 

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

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

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

FOR FURTHER INFORMATION CONTACT: For further information about this 

proposed rule, contact Jeremy Arling by telephone at (202) 343-9055, or by 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 proposed rule concerns Clean Air Act 

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

Group VI controlled substance) for critical uses during calendar years 2014 and 2015. 

Under the Clean Air Act, methyl bromide consumption (consumption is defined under 

section 601 of the CAA as production plus imports minus exports) and production were 

phased out on January 1, 2005, apart from allowable exemptions, such as the critical use 

and the quarantine and preshipment (QPS) exemptions. With this action, EPA is 

proposing and seeking comment on the uses that will qualify for the critical use 

exemption as well as specific amounts of methyl bromide that may be produced and 

imported for proposed critical uses for the 2014 and 2015 control periods. EPA also seeks 
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comment on the amendments to the regulatory framework to remove provisions related to 

sale of pre-phaseout inventory for critical uses.

Table of Contents

I. General Information

A. Regulated Entities

B. What Should I Consider When Preparing My Comments?

II. What Is Methyl Bromide?

III. What Is the Background to the Phaseout Regulations for Ozone-Depleting 

Substances?

IV. What Is the Legal Authority for Exempting the Production and Import of Methyl 

Bromide for Critical Uses Authorized by the Parties to the Montreal Protocol? 

V. What Is the Critical Use Exemption Process?

A. Background of the Process

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

Rules?

C. Proposed Critical Uses

D. Proposed Critical Use Amounts

E. Amending the Critical Stock Allowance Framework

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

G. Emissions Minimization

VI. Statutory and Executive Order Reviews 

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

Order 13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

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

Governments

G. Executive Order 13045: Protection of Children from Environmental 

Health and Safety Risks

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

Distribution, or Use

I. National Technology Transfer and Advancement Act

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

in Minority Populations and Low-Income Populations

I. General Information

A. Regulated Entities

Entities and categories of entities potentially regulated by this proposed action 

include producers, importers, and exporters of methyl bromide; applicators and 
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distributors of methyl bromide; and users of methyl bromide that applied for the 2014 and 

2015 critical use exemption including growers of vegetable crops, fruits, and nursery 

stock, and owners of stored food commodities and structures such as grain mills and 

processors. This list is not intended to be exhaustive, but rather to provide a guide for 

readers regarding entities likely to be regulated by this proposed action. To determine 

whether your facility, company, business, or organization could be regulated by this 

proposed action, you should carefully examine the regulations promulgated at 40 CFR 

part 82, subpart A. If you have questions regarding the applicability of this action to a 

particular entity, consult the person listed in the preceding section.

B. What Should I Consider When Preparing My Comments?

1. Confidential Business Information. Do not submit confidential business information 

(CBI) to EPA through www.regulations.gov or e-mail. Clearly mark the part or all of the 

information that you claim to be CBI. For CBI information in a disk or CD-ROM that 

you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify 

electronically within the disk or CD-ROM the specific information that is claimed as 

CBI. Information so marked will not be disclosed except in accordance with procedures 

set forth in 40 CFR part 2. In addition to one complete version of the comment that 

includes information claimed as CBI, a copy of the comment that does not contain the 

information claimed as CBI must be submitted for inclusion in the public docket.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

 Identify the rulemaking by docket number and other identifying information (subject 

heading, Federal Register date, and page number).

 Follow directions - The agency may ask you to respond to specific questions or 
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organize comments by referencing a Code of Federal Regulations (CFR) part or 

section number.

 Explain why you agree or disagree; suggest alternatives and substitute language for 

your requested changes.

 Describe any assumptions and provide any technical information and/or data that you 

used.

 If you estimate potential costs or burdens, explain how you arrived at your estimate in 

sufficient detail to allow for it to be reproduced.

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

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

threats.

 Make sure to submit your comments by the comment period deadline identified.

II. What Is Methyl Bromide?

Methyl bromide is an odorless, colorless, toxic gas which is used as a broadspectrum pesticide and is controlled under the CAA as a Class I ozone-depleting 

substance (ODS). Methyl bromide was once widely used as a fumigant to control a 

variety of pests such as insects, weeds, rodents, pathogens, and nematodes. Information 

on methyl bromide can be found at http://www.epa.gov/ozone/mbr.

Methyl bromide is also regulated by EPA under the Federal Insecticide, 

Fungicide, and Rodenticide Act (FIFRA) and other statutes and regulatory authority, as 

well as by States under their own statutes and regulatory authority. Under FIFRA, methyl 

bromide is a restricted use pesticide. Restricted use pesticides are subject to Federal and 

State requirements governing their sale, distribution, and use. Nothing in this proposed 
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rule implementing Title VI of the Clean Air Act is intended to derogate from provisions 

in any other Federal, State, or local laws or regulations governing actions including, but 

not limited to, the sale, distribution, transfer, and use of methyl bromide. Entities affected 

by this proposal must comply with FIFRA and other pertinent statutory and regulatory 

requirements for pesticides (including, but not limited to, requirements pertaining to 

restricted use pesticides) when producing, importing, exporting, acquiring, selling, 

distributing, transferring, or using methyl bromide. The provisions in this proposed action 

are intended only to implement the CAA restrictions on the production, consumption, and 

use of methyl bromide for critical uses exempted from the phaseout of methyl bromide. 

III. What Is the Background to the Phaseout Regulations for Ozone-Depleting 

Substances?

The regulatory requirements of the stratospheric ozone protection program that 

limit production and consumption of ozone-depleting substances are in 40 CFR part 82, 

subpart A. The regulatory program was originally published in the Federal Register on 

August 12, 1988 (53 FR 30566), in response to the 1987 signing and subsequent 

ratification of the Montreal Protocol on Substances that Deplete the Ozone Layer 

(Montreal Protocol). The Montreal Protocol is the international agreement aimed at 

reducing and eliminating the production and consumption of stratospheric ozonedepleting substances. The United States was one of the original signatories to the 1987 

Montreal Protocol and the United States ratified the Protocol on April 12, 1988. Congress 

then enacted, and President George H.W. Bush signed into law, the Clean Air Act 

Amendments of 1990 (CAAA of 1990) which included Title VI on Stratospheric Ozone 

Protection, codified as 42 U.S.C. Chapter 85, Subchapter VI, to ensure that the United 
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States could satisfy its obligations under the Protocol. EPA issued regulations to 

implement this legislation and has since amended the regulations as needed.

Methyl bromide was added to the Protocol as an ozone-depleting substance in 

1992 through the Copenhagen Amendment to the Protocol. The Parties to the Montreal 

Protocol (Parties) agreed that each developed country’s level of methyl bromide 

production and consumption in 1991 should be the baseline for establishing a freeze on 

the level of methyl bromide production and consumption for developed countries. EPA 

published a final rule in the Federal Register on December 10, 1993 (58 FR 65018), 

listing methyl bromide as a Class I, Group VI controlled substance. This rule froze U.S. 

production and consumption at the 1991 baseline level of 25,528,270 kilograms, and set 

forth the percentage of baseline allowances for methyl bromide granted to companies in 

each control period (each calendar year) until 2001, when the complete phaseout would 

occur. This phaseout date was established in response to a petition filed in 1991 under 

sections 602(c)(3) and 606(b) of the CAAA of 1990, requesting that EPA list methyl 

bromide as a Class I substance and phase out its production and consumption. This date 

was consistent with section 602(d) of the CAAA of 1990, which, for newly listed Class I 

ozone-depleting substances provides that “no extension [of the phaseout schedule in 

section 604] under this subsection may extend the date for termination of production of 

any class I substance to a date more than 7 years after January 1 of the year after the year 

in which the substance is added to the list of class I substances.”

At the Seventh Meeting of the Parties (MOP) in 1995, the Parties agreed to

adjustments to the methyl bromide control measures and agreed to reduction steps and a 

2010 phaseout date for developed countries with exemptions permitted for critical uses. 
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At that time, the United States continued to have a 2001 phaseout date in accordance with 

section 602(d) of the CAAA of 1990. At the Ninth MOP in 1997, the Parties agreed to 

further adjustments to the phaseout schedule for methyl bromide in developed countries, 

with reduction steps leading to a 2005 phaseout. The Parties also established a phaseout 

date of 2015 for Article 5 countries.

IV. What Is the Legal Authority for Exempting the Production and Import of 

Methyl Bromide for Critical Uses Authorized by the Parties to the Montreal 

Protocol?

In October 1998, the U.S. Congress amended the Clean Air Act to prohibit the 

termination of production of methyl bromide prior to January 1, 2005, to require EPA to 

align the U.S. phaseout of methyl bromide with the schedule specified under the Protocol, 

and to authorize EPA to provide certain exemptions. These amendments were contained 

in Section 764 of the 1999 Omnibus Consolidated and Emergency Supplemental 

Appropriations Act (Pub. L. 105-277, October 21, 1998) and were codified in section 604 

of the CAA, 42 U.S.C. 7671c. The amendment that specifically addresses the critical use 

exemption appears at section 604(d)(6), 42 U.S.C. 7671c(d)(6). EPA revised the phaseout 

schedule for methyl bromide production and consumption in a rulemaking on November 

28, 2000 (65 FR 70795), which allowed for the reduction in methyl bromide consumption 

specified under the Protocol and extended the phaseout to 2005 while creating a 

placeholder for critical use exemptions. EPA amended the regulations to allow for an 

exemption for quarantine and preshipment (QPS) purposes through an interim final rule 

on July 19, 2001 (66 FR 37751), and a final rule on January 2, 2003 (68 FR 238).
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On December 23, 2004 (69 FR 76982), EPA published a rule (the “Framework 

Rule”) that established the framework for the critical use exemption, set forth a list of 

approved critical uses for 2005, and specified the amount of methyl bromide that could 

be supplied in 2005 from stocks and new production or import to meet the needs of 

approved critical uses. EPA subsequently published rules applying the critical use 

exemption framework for each of the annual control periods from 2006 to 2012. In the 

2013 rule, EPA amended the framework to remove certain requirements related to sale of 

pre-phaseout inventory for critical uses.

Under authority of section 604(d)(6) of the CAA, this action proposes the uses 

that will qualify as approved critical uses for two separate control periods (2014 and 

2015) as well as the amount of methyl bromide that may be produced or imported to 

satisfy those uses in each of those years. EPA is also amending the regulatory framework 

to remove additional provisions related to sale of pre-phaseout inventory for critical uses. 

The proposed critical uses and amounts for 2014 reflect Decision XXIV/5, taken at the 

Twenty-Fourth Meeting of the Parties in November 2012. The proposed critical uses and 

amounts for 2015 reflect Decision XXV/4, taken at the Twenty-Fifth Meeting of the 

Parties in October 2013.

In accordance with Article 2H(5) of the Montreal Protocol, the Parties have issued 

several Decisions pertaining to the critical use exemption. These include Decisions IX/6 

and Ex. I/4, which set forth criteria for review of critical uses. The status of Decisions is 

addressed in NRDC v. EPA, (464 F.3d 1, D.C. Cir. 2006) and in EPA’s “Supplemental 

Brief for the Respondent,” filed in NRDC v. EPA and available in the docket for this 
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action. In this proposed rule on critical uses for 2014 and 2015, EPA is honoring 

commitments made by the United States in the Montreal Protocol context.

V. What Is the Critical Use Exemption Process?

A. Background of the Process

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

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

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

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

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

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

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

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

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

“critical use” at 40 CFR 82.3. In addition, the Parties decided that production and 

consumption, if any, of methyl bromide for critical uses should be permitted only if a 

variety of conditions have been met, including that all technically and economically 

feasible steps have been taken to minimize the critical use and any associated emission of 

methyl bromide, that research programs are in place to develop and deploy alternatives 

and substitutes, and that methyl bromide is not available in sufficient quantity and quality 

from existing stocks of banked or recycled methyl bromide.

EPA requested critical use exemption applications through Federal Register 

notices published on June 14, 2011 (76 FR 34700) (for the 2014 control period) and on 

May 17, 2012 (77 FR 29341) (for the 2015 control period). Applicants submitted data on 
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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 make Decisions on the authorization 

of critical use exemptions for particular Parties, including how much methyl bromide 

may be supplied for the exempted critical uses. The EPA then provides an opportunity for 

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

proposing to exempt.

Comment [A1]: USDA has no regulatory 

authority related to methyl bromide for CUEs
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On January 31, 2012, the U.S. Government (USG) 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 USG concerning 

technical and economic issues in the 2014 nomination. The USG 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 USG responded to those questions in August 2012. These 

documents, together with reports by the advisory bodies noted above, are in the public 

docket for this rulemaking. The proposed critical uses and amounts reflect the analysis 

contained in those documents.

On January 24, 2013, the U.S. Government (USG) 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 USG 

concerning technical and economic issues in the 2015 nomination. The USG transmitted 

responses to MBTOC in March, 2013. In May 2013, the MBTOC provided their interim 

recommendations on the U.S. nomination in the May TEAP Progress Report and posed 

additional questions about the U.S. nominations. The USG responded to those questions 

in August 2013. These documents, together with reports by the advisory bodies noted 

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

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

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

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

trading provisions, and recordkeeping and reporting obligations. The preamble to the 

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

exemption program.

Since publishing the Framework Rule, EPA has annually promulgated regulations 

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

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

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

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

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

77 FR 29218 (May 17, 2012), and 78 FR 43797 (July 22, 2013).

Unlike previous years, today’s action proposes critical uses for both 2014 and 

2015. EPA is proposing to do so to expedite the issuance of 2015 allowances. EPA has 

received repeated comments in recent years that a failure to issue CUE allowances in a 

timely fashion places manufacturers and distributors, who need to plan for the upcoming 

growing season, in a difficult position. For 2013, the final rule was not effective until 

July 22, 2013, and EPA recognizes that this late date could cause difficulties for growers 

as well as manufacturers and distributors. EPA seeks to avoid such difficulties for 2015 

by issuing the authorization for that year in this rulemaking.

Today’s action continues the approach established in the 2013 rule for 

determining the amounts of Critical Use Allowances (CUAs) to be allocated for critical 
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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. In this rule, EPA is proposing to remove all of 

the remaining provisions in 40 CFR part 82 related to critical stock allowances.

C. Proposed Critical Uses

In Decision XXIV/5, taken in November 2012, the Parties to the Protocol agreed 

“to permit, for the agreed critical-use categories for 2014 set forth in table A of the annex 

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

decision and in decision Ex.I/4 to the extent that those conditions are applicable, the 

levels of production and consumption for 2014 set forth in table B of the annex to the 

present decision, which are necessary to satisfy critical uses ...” The following uses are 

those set forth in table A of the annex to Decision XXIV/5 for the United States:

 Commodities

 Mills and food processing structures
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 Cured pork

 Strawberry – field

In Decision XXV/4, taken in October 2013, the Parties to the Protocol agreed “to 

permit, for the agreed critical-use categories for 2015 set forth in table A of the annex to 

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

decision and in decision Ex.I/4 to the extent that those conditions are applicable, the 

levels of production and consumption for 2015 set forth in table B of the annex to the 

present decision, which are necessary to satisfy critical uses ...” The following uses are 

those set forth in table A of the annex to Decision XXV/4 for the United States:

 Cured pork

 Strawberry – field

EPA is proposing to modify the table in 40 CFR part 82, subpart A, appendix L to 

reflect the agreed critical use categories identified in Decision XXIV/5 and Decision 

XXV/4. EPA is proposing to amend the table of critical uses and critical users based in 

part on the technical analyses contained in the 2014 and 2015 U.S. nominations that 

assess data submitted by applicants to the CUE program. 

EPA is seeking comment on the technical analyses contained in the U.S. 

nominations (available for public review in the docket). Specifically, EPA requests

information regarding any changes to the registration (including cancellations or 

registrations), use, or efficacy of alternatives that have occurred after the nominations 

were submitted. EPA recognizes that as the market for alternatives evolves, the 

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

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

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

Comment [A2]: May be useful to clarify what 

else the amended table is based on.
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the analysis that underpins EPA’s determination as to which uses and what amounts of 

methyl bromide qualify for the CUE.

The following are proposed changes to the existing appendix, starting with 

changes due to the applications and analysis conducted for the 2014 control period. For 

2014, EPA is proposing to remove Georgia growers of cucurbits, eggplants, peppers, and 

tomatoes. These groups did not submit applications for 2014 and therefore were not 

included in the 2014 U.S. nomination.

EPA is proposing to remove sectors or users that applied for a critical use in 2014

but that the United States did not nominate for 2014. EPA conducted a thorough technical 

assessment of each application and considered the effects that the loss of methyl bromide 

would have for each agricultural sector, and whether significant market disruption would 

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

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

therefore did not include them in the 2014 Critical Use Nomination. EPA notified these 

sectors of their status by letters dated February 7, 2012. These sectors are orchard replant 

for California wine grape growers and Florida growers of eggplants, peppers, and 

tomatoes. For each of these uses, EPA found that there are technically and economically 

feasible alternatives to methyl bromide. 

Some users who were not included in the 2014 Critical Use Nomination submitted 

supplemental applications for 2014. These users are: the California Association of 

Nursery and Garden Centers; California stone fruit, table and raisin grape, walnut, and 

almond growers; ornamental growers in California and Florida; California strawberry 

nurseries; stored walnuts; and the U.S. Golf Course Superintendents Association. For 

Comment [A3]: Comma.

Deleted: Second,

Comment [A4]: Wording here is a little odd, 

since there is no “first” and it is not clear whether the 

next paragraph is “third.”

Deleted: r

Comment [A5]: Is this edit correct?

Deleted: equests

Deleted: a
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those sectors the United States government came to a decision that the sectors not 

nominated have not provided rigorous and convincing evidence that they meet the criteria 

laid out in Decision IX/6, and further that no new problem or large yield/quality loss had

been demonstrated that warranted seeking a supplemental authorization from the Parties 

to the Montreal Protocol. 

The following are proposed changes to the existing appendix due to the 

applications and analysis conducted for the 2015 control period. For 2015 EPA is 

proposing to remove California wine grape growers and Florida growers of eggplants, 

peppers, tomatoes, and strawberries. These groups did not submit applications for 2015

and therefore were not included in the 2015 U.S. nomination.

EPA is proposing to remove sectors or users that applied for a critical use in 2015

but that the United States did not nominate for 2015. As described above EPA conducted 

a thorough technical assessment of each application and the USG determined that certain

sectors or users did not meet the critical use criteria. EPA notified these sectors of their 

status by letters dated March 26, 2013. These sectors are rice millers, pet food 

manufacturing facilities, members of the North American Millers Association, and 

California entities storing walnuts, dried plums, figs, and raisins. In addition, EPA is 

proposing to remove entities storing dates as a critical use for 2015. While the USG 

nominated this sector for 2015, MBTOC did not recommend that this sector be a critical 

use in 2015 and the Parties did not authorize this use. 

EPA has received supplemental applications for 2015 from sectors that the United 

States did not nominate for 2015. These users are: Michigan cucurbit, eggplant, pepper, 

and strawberry growers; Florida eggplant, pepper, tomato, and strawberry growers; the 

Comment [A6]: Beginning of the paragraph says 

“users.” Are the terms “users” and “sectors” 

referring to the same thing, or is there a reason why 

two terms are used? Please be consistent if you can.
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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. The USG is currently reviewing these supplemental applications for 2015 and

EPA is not proposing at this time to authorize critical use for these sectors.1

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

critical uses are approved for which control periods. EPA is not proposing other changes 

to the table but is repeating the following clarifications made in previous years for ease of 

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

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

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

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

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

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

silo availability for using alternatives. 

D. Proposed Critical Use Amounts 

Table A of the annex to Decision XXIV/5 lists critical uses and amounts agreed to 

by the Parties to the Montreal Protocol for 2014. The maximum amount of new 

production and import for U.S. critical uses, specified in Table B of Decision XXIV/5, is 

442,337 kg, minus available stocks. This figure is equivalent to 1.7% of the U.S. 1991 

methyl bromide consumption baseline of 25,528,270 kg.

 

1 If the USG nominates a sector for supplemental authorization, and the Parties authorize 

that sector for a critical use during 2015 at the Twenty Sixth Meeting of the Parties in 

November 2014, EPA anticipates including that authorization in a separate rulemaking 

together with the 2016 CUE authorization.

Deleted: orchard

Comment [A7]: Consistent with previous 

wording. Correct?

Deleted: a

Comment [A8]: Is this supposed to refer to 

entities in California consistent with earlier 

paragraph?

Comment [A9]: Correct?

Deleted: requests
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Similarly, Table A of the annex to Decision XXV/4 lists critical uses and amounts 

agreed to by the Parties to the Montreal Protocol for 2015. The maximum amount of new 

production and import for U.S. critical uses, specified in Table B of Decision XXV/4, is 

376,900 kg, minus available stocks. This figure is equivalent to 1.5 % of the U.S. 1991 

methyl bromide consumption baseline.

For 2014 and 2015, EPA is proposing to determine the level of new production 

and import according to the framework and as modified by the 2013 Rule. Under this 

approach, the amount of new production for each control period would equal the total 

amount authorized by the Parties to the Montreal Protocol in their Decisions minus any 

reductions for available stocks, carryover, and the uptake of alternatives. As established 

in the 2013 Rule, EPA would not allocate critical stock allowances. The EPA would still 

determine whether there are any “available stocks” and reduce the new production 

allocation by that amount. Applying this approach, EPA is proposing to allocate 

allowances to exempt 442,337 kg of new production and import of methyl bromide for 

critical uses in 2014 and 376,900 kg of new production and import for 2015. 

Available Stocks: For 2014 and 2015 the Parties indicated that the United States 

should use “available stocks,” but did not indicate a minimum amount expected to be 

taken from stocks. Consistent with EPA’s past practice, and our commitments to the 

Parties, EPA is considering what amount, if any, of the existing stocks may be available 

to critical users during 2014 and 2015. Existing stocks, the amount reported to EPA as of 

December 31, 2012, was 627,066 kg.

The Parties to the Protocol recognized in their Decisions that the level of existing 

stocks may differ from the level of available stocks. Both Decision XXIV/5 and Decision 

Comment [A10]: Can EPA provide a brief 

explanation of what “uptake” means in this context?

Comment [A11]: Do you mean: “The amount of 

existing stocks reported to EPA as of ....was...”
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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 have the ability to 

determine their level of available stocks. Section 604(d)(6) of the CAA does not require 

EPA to adjust the amount of new production and import to reflect the availability of 

stocks; however, as explained in previous rulemakings, making such an adjustment is a 

reasonable exercise of EPA’s discretion under this provision.

In the 2013 CUE Rule (78 FR 43797, July 22, 2013), EPA established an 

approach that considered whether a percentage of the existing inventory was available. In 

that rule, EPA took comment on whether 0% or 5% of the existing stocks was available. 

The final rule found that 0% was available to be allocated for critical use in 2013 for a 

number of reasons including: a pattern of significant underestimation of inventory 

drawdown; the increasing concentration of critical users in California while inventory 

remained distributed nationwide; and the recognition that the agency cannot compel 

distributors to sell inventory to critical users. For further discussion, please see the 2013 

CUE Rule. EPA believes these circumstances remain true for 2014 and 2015. 

In addition, the 2013 CUE Rule removed the restriction that critical stock 

allowances be expended to sell inventory to critical uses. As a result, for the first time in 

the history of the CUE program, distributors were free to sell their entire remaining 
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inventory to critical users. At this time, EPA is unable to calculate what effect this policy 

change may have had on the remaining inventory, although the agency will docket end of 

year inventory data that will be reported to EPA in February 2014. EPA notes that it may 

be difficult to assess the impact of this change, which went into effect in mid-2013, 

simply from updated inventory data. EPA solicits comments on whether, and how, to 

draw inferences as to the availability of stocks for critical uses based on inventory figures 

as of December 31, 2013, (e.g., whether the magnitude of the reduction in pre-phaseout 

stocks could be evidence of the degree of availability for critical uses). 

For these reasons, EPA is proposing to find 0% of the existing inventory available

for 2014 and 2015. EPA specifically invites comment on whether 0% or 5% of existing 

inventory will be available to critical users in 2014 and/or 2015, taking into consideration 

the recent history of inventory drawdown, the removal of the critical stock allowance 

provisions, the quantity and geographical location of authorized uses, and the quantity 

and location of stocks. 

Existing stocks, as of December 31, 2012, were equal to 627,066 kg. Therefore, 

5% would be 31,353 kg. Were EPA to find 5% of existing stocks to be available, EPA 

would reduce the amount of new production for 2014 and/or for 2015 by 31,353 kg. EPA

notes that it is not proposing to allocate a corresponding amount of critical stock 

allowances, as had been the case prior to 2013. EPA removed the requirement to expend 

critical stock allowances when selling inventory to critical users in the 2013 CUE Rule. 

EPA notes that it will receive updated end of year inventory data in February 2014. EPA 

anticipates that inventory will have been further drawn down, and therefore 5% of the 

existing stocks, based on the updated data, is likely to be significantly less than 31,353 
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kg. EPA solicits comment on whether, if EPA concludes some portion of existing stocks 

are “available,” EPA should calculate the portion that is available for 2014 and/or 2015 

based on the updated data for inventory as of December 31, 2013. 

Carryover Material: The Parties in paragraph 9 of Decision XXIV/5 “urge parties 

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

the accumulation of methyl bromide produced under the exemptions.” EPA regulations 

prohibit methyl bromide produced or imported after January 1, 2005, under the critical 

use exemption from being added to the existing pre-2005 inventory. Quantities of methyl 

bromide produced, imported, exported, or sold to end-users under the critical use 

exemption in a control period must be reported to EPA the following year. EPA uses 

these reports to calculate the amount of methyl bromide produced or imported under the 

critical use exemption, but not exported or sold to end-users in that year. EPA deducts an 

amount equivalent to this “carryover” from the total level of allowable new production 

and import in the year following the year of the data report. So for example, the amount 

of carryover from 2012 is factored into the determination for 2014. Carryover material 

(which is produced using critical use allowances) is not included in EPA’s definition of 

existing inventory (which applies to pre-2005 material) because this would lead to a 

double-counting of carryover amounts.

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

imported in 2012 was sold to end users. The information reported to EPA is that 759 MT 

(759,000 kg) 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 
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prior control period. Therefore, EPA is proposing to apply the carryover deduction of 0 

kg to the new production amount for 2014. EPA’s calculation of the amount of carryover 

at the end of 2012 is consistent with the method used in previous CUE rules, and with the 

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

Past U.S. Accounting Frameworks, including the one for 2012, are available in the public 

docket for this rulemaking. 

Production, import, and sales data for 2013 will be reported to EPA in February 

2014. Without these data, the agency is unable to calculate how, or whether, a reduction 

for carryover would affect the 2015 allocation amount. However, EPA anticipates that the 

carryover will remain 0 kg, as it has been at that level since 2009. Based on information 

available, EPA believes that the demand for critical use methyl bromide continues to be 

high and all material produced or imported for a particular control period is sold in that 

control period. Therefore, while the proposed allocation amount for 2015 assumes 0 kg of 

carryover in 2013, EPA proposes to use the reported data to calculate the actual carryover 

amount for 2013, and subtract that amount (if any) from the authorization for new 

production and import in the final rule. 

Uptake of Alternatives: EPA considers data on the availability of alternatives that 

it receives following submission of each nomination to UNEP. In previous rules EPA has 

reduced the total CUE amount when a new alternative has been registered and increased 

the new production amount when an alternative is withdrawn, but not above the amount 

authorized by the Parties.

Since the USG submitted the 2014 CUN on January 31, 2012, the California 

Department of Pesticide Regulation has proposed control measures for the use of 
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chloropicrin with the intent of reducing risk from acute exposures that might occur near 

fields fumigated with products containing chloropicrin. Because this regulation is at the 

proposed stage and has not been finalized, EPA is unable to state what effects these 

changes may have on the availability of methyl bromide alternatives for 2014. It is more 

likely that the proposed changes to chloropicrin regulation would affect the 2015 control 

period and EPA specifically invites comments on the implications for 2015. However 

EPA is not proposing to make any reductions for either the 2014 or 2015 control periods 

because the critical use exemption program has historically only relied on final actions 

when determining the availability of alternatives. EPA is not aware of any other actions 

regarding alternatives that would lead to either an increase or decrease in _____.

EPA is not proposing to make any other modifications to CUE amounts to 

account for availability of alternatives. Transition rates for alternatives have already been 

applied for authorized 2014 and 2015 critical use amounts through the nomination and 

authorization process. EPA will consider new data received during the comment period 

and continues to gather information about methyl bromide alternatives through the CUE 

application process, and by other means. EPA also continues to support research and 

adoption of methyl bromide alternatives, and to request information about the economic 

and technical feasibility of all existing and potential alternatives.

Allocation Amounts: EPA is proposing to allocate 2014 critical use allowances 

for new production or import of methyl bromide equivalent to 442,337 kg. Because EPA 

is taking comment on finding 5% of existing inventory to be available, EPA is also taking 

comment on an allocation of 410,984 kg. EPA is also proposing to allocate 2015 critical 

use allowances for new production or import of methyl bromide equivalent to 376,900

Deleted: change

Comment [A12]: Correct?

Comment [A13]: Correct?

Comment [A14]: Does this mean “Rates of 

transition to alternatives...”?
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kg. EPA also is taking comment on whether it should find 5% of existing inventory to be 

available, which would result in an allocation of 345,547 kg. EPA is taking further 

comment on whether, if EPA concludes some portion of existing stocks are “available,” 

EPA should calculate the portion that is available for 2014 and/or 2015 based on the 

updated data for inventory to be submitted in February 2014.

EPA is proposing to allocate the 2014 and 2015 allowances to the four companies 

that hold baseline allowances. The proposed allocations, as in previous years, are in 

proportion to those baseline amounts, as shown in the proposed changes to the table in 40 

CFR 82.8(c)(1). Paragraph 3 of Decision XXIV/5 and paragraph 5 of Decision XXV/4

state that “parties shall endeavour to license, permit, authorize or allocate quantities of 

methyl bromide for critical uses as listed in table A of the annex to the present decision.” 

This is similar to language in prior Decisions authorizing critical uses. These Decisions 

call on Parties to endeavor to allocate critical use methyl bromide on a sector basis. The 

Framework Rule proposed several options for allocating critical use allowances, 

including a sector-by-sector approach. The agency evaluated various options based on 

their economic, environmental, and practical effects. After receiving comments, EPA 

determined that a lump-sum, or universal, allocation, modified to include distinct caps for 

pre-plant and post-harvest uses, was the most efficient and least burdensome approach 

that would achieve the desired environmental results, and that a sector-by-sector 

approach would pose significant administrative and practical difficulties. For the reasons 

discussed in the preamble to the 2009 CUE rule (74 FR 19894), and because of the 

limited number of authorized uses, the agency believes that under the approach adopted 

Deleted: 5
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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 

those restrictions including removing the reference to the restriction on selling inventory 

pursuant to a CSA from the definition of “critical use methyl bromide.” 

The 2013 Rule also stated that EPA believed additional conforming changes may 

be appropriate but that it would address those changes in a future rulemaking. In today’s 

rule, EPA is proposing and taking comment on removing the remaining references to 

critical stock allowances in 40 CFR Part 82. EPA believes these provisions are no longer 

necessary if the agency is not allocating separate critical stock allowances. Specifically, 

EPA is proposing to remove the definitions of “critical stock allowance,” “critical stock 

allowance holder,” and “unexpended critical stock allowance” from § 82.3. EPA is 

proposing to no longer allow for the intercompany transfer of critical stock allowances at 

§ 82.12(a) or the exchange of critical use allowances for critical stock allowances at § 

82.12(e). EPA is also proposing to remove the reporting and recordkeeping requirements 

related to critical stock allowances in § 82.13(3) and (4). EPA invites comment on the 

necessity of these provisions, the appropriateness of removing them from the Code of 

Federal Regulations, and whether there are other provisions that should be amended in 

light of the removal of the requirement to use critical stock allowances for sales of 

inventory to critical users. EPA also requests comment on potential mechanisms within the Clean Air 

Act or other statutory authorities to respond to the withdrawal of alternatives, for example, iodomethane, 

Deleted: ,

Deleted: ,

Comment [A15]: Please clearly define as this is 

subject to interpretation.
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and other unforeseen or emergency situations. EPA continues to hold discussions with USDA and the 

Department of State on this and other tools that could potentially address immediate and unforeseen needs 

for methyl bromide. 

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

Decision XXIV/5 and Decision XXV/4 call on Parties to apply the conditions and

criteria listed in Decisions Ex. I/4 (to the extent applicable) and IX/6 paragraph 1 to 

exempted critical uses for the 2014 and 2015 control periods. A discussion of the 

agency’s application of the criteria in paragraph 1 of Decision IX/6 appears in sections 

V.A., and V.C. of this preamble. Section V.C. solicits comments on the technical and 

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

of the critical use exemption. The CUNs detail how each proposed critical use meets the 

criteria in paragraph 1 of Decision IX/6, apart from the criterion located at (b)(ii), as well 

as the criteria in paragraphs 5 and 6 of Decision Ex. I/4. 

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

available stocks of methyl bromide, is addressed in section V.D. of this preamble. The 

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

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

of an exemption and EPA refers readers to the preamble for the 2006 CUE rule (71 FR 

5989, February 6, 2006) as well as to the memo in the docket titled “Development of 

2003 Nomination for a Critical Use Exemption for Methyl Bromide for the United States 

of America” for further elaboration. As explained in 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 

Comment [A16]: There are approved CUEs for 

2015 and may be in 2016, necessitating the need for 

critical uses of methyl bromide for those years. It 

may be possible that CUEs may be sought and 

approved by the Parties in 2017 and afterward. In 

the event of a catastrophic supply chain failure, EPA

had historically been relying on CSAs from the 

private sector to ensure a continued availability of 

stock for CUE use. In view of EPA’s proposed 

changes for CSAs, where would methyl bromide be 

obtained in the event of a catastrophic supply chain 

failure?

Comment [A17]: Some commenters are 

concerned that there is no mechanism to address an 

emergency. From the infant stages of developing the 

process for CUEs and other language around the use 

of methyl bromide, EPA had always indicated that 

an Emergency Use Rule would be put into place.

Countries, including Canada, have an Emergency 

Use Rule in place and growers have twice been able 

to obtain methyl bromide through this mechanism.

This gives U.S. growers an unfair disadvantage as 

they have no way to obtain methyl bromide should 

an emergency situation occur. The commenters 

believe that growers in the U.S. should have the 

same opportunities to obtain an emergency use of 

methyl bromide as afforded growers in other 

countries.
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individual level and at an aggregate level, and evaluating potential losses in both relative 

and absolute terms.

The remaining considerations are addressed in the nomination documents

including: the lack of available technically and economically feasible alternatives under 

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

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

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

consider and implement MBTOC recommendations, where feasible, on reductions in the 

critical use of methyl bromide and include information on the methodology they use to 

determine economic feasibility.

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

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

bromide alternatives (see Decision IX/6 paragraph (1)(b)(iii)) in the development of the 

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

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

specified in Decision Ex.I/4 paragraph 3 to the extent feasible and is available in the 

docket for this rulemaking.

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

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

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

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

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

shown in the table in Appendix L to subpart A remains a critical use of methyl bromide. 
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While researchers may continue to use newly produced material for field, post-harvest, 

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

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

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

transition critical use crops to alternatives.

G. Emissions Minimization

Previous Decisions have stated that critical users shall employ emission 

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

deep shank injection and/or other techniques that promote environmental protection, 

whenever technically and economically feasible. EPA developed a comprehensive 

strategy for risk mitigation through the 2009 Reregistration Eligibility Decision (RED) 

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

products can be used. This approach means that methyl bromide labels require that 

treated sites be tarped (except for California orchard replant where EPA instead requires 

deep (18 inches or greater) shank applications). The RED also incorporated incentives for 

applicators to use high-barrier tarps, such as virtually impermeable film (VIF), by 

allowing smaller buffer zones around those sites. In addition to minimizing emissions, 

use of high-barrier tarps has the benefit of providing pest control at lower application 

rates. The amount of methyl bromide nominated by the United States reflects the lower 

application rates necessary when using high-barrier tarps, where such tarps are allowed.

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

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

Agriculture (USDA-NIFA) to promote emission reduction techniques. The federal 
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government has invested substantial resources into best practices for methyl bromide use, 

including emission reduction practices. The Cooperative Extension System, which 

receives some support from USDA-NIFA provides locally appropriate and projectfocused outreach education regarding methyl bromide transition best practices.

Additional information on USDA research on alternatives and emissions reduction can be 

found at: http://www.ars.usda.gov/research/programs/programs.htm?NP_CODE=308

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

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

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

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

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

critical use applications.

VI. Statutory and Executive Order Reviews

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

Improving Regulation and Regulatory Review

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

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

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

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

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

have been documented in the docket for this action.

B. Paperwork Reduction Act

Comment [A18]: Not clear exactly what this 

means. 

When would it be unacceptable to minimize 

emissions to a greater extent than required by law? 

When would it be acceptable to not reduce emissions 

to the extent required by law?
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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 propose to remove 

requirements related to the recordkeeping and reporting of critical stock allowances

which would decrease the information collection burden. The Office of Management and 

Budget (OMB) has previously approved the information collection requirements 

contained in the existing regulations at 40 CFR part 82 under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 

2060-0482. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 

CFR part 9.

C. Regulatory Flexibility Act

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

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

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

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

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

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

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

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

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

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

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

dominant in its field.
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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

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 proposed 

rule would only affect entities that applied to EPA for an exemption to the phaseout of 

methyl bromide. In most cases, EPA received aggregated requests for exemptions from 

industry consortia. On the exemption application, EPA asked consortia to describe the 

number and size distribution of entities their application covered. EPA estimated that 

3,218 entities petitioned EPA for an exemption for the 2005 control period. EPA revised 

this estimate in 2011 down to 1,800 end users of critical use methyl bromide. EPA 

believes that the number continues to decline as growers cease applying for the critical 

use exemption. Since many applicants did not provide information on the distribution of 

sizes of entities covered in their applications, EPA estimated that, based on the above 

definition, between one-fourth and one-third of the entities may be small businesses. In 
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addition, other categories of affected entities do not contain small businesses based on the 

above description.

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

certify that this action will not have a significant economic impact on a substantial 

number of small entities. In determining whether a rule has a significant economic impact 

on a substantial number of small entities, the impact of concern is any significant adverse

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

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

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

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

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

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

rule would allow the use of methyl bromide for approved critical uses after the phaseout 

date of January 1, 2005, this action would confer a benefit to users of methyl bromide. 

EPA estimates in the Regulatory Impact Assessment found in the docket to this rule that 

the reduced costs resulting from the de-regulatory creation of the exemption are 

approximately $22 million to $31 million on an annual basis (using a 3% or 7% discount 

rate respectively). We have therefore concluded that this proposed rule would relieve 

regulatory burden for all small entities.

D. Unfunded Mandates Reform Act

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

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

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

provide an exemption for the manufacture and use of a phased out compound and would 

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

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

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

that might significantly or uniquely affect small governments. 

E. Executive Order 13132: Federalism

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

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

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

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

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

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

Order 13132, and consistent with EPA policy to promote communications between EPA 

and State and local governments, EPA specifically solicits comment on this proposed 

action from State and local officials.

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

Governments 

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

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

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

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

action from tribal officials.

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

Safety Risks

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

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

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

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

equally for all affected populations without having any disproportionately high and 

adverse human health or environmental effects on any population.

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

or Use

This proposed rule is not a “significant energy action” as defined in Executive 

Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, 

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

significant adverse effect on the supply, distribution, or use of energy. This proposed rule 

does not pertain to any segment of the energy production economy nor does it regulate 

any manner of energy use. Therefore, we have concluded that this proposed rule is not 

likely to have any adverse energy effects.

I. National Technology Transfer and Advancement Act

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

(“NTTAA”), Public Law 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 
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inconsistent with applicable law or otherwise impractical. Voluntary consensus standards 

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

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

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

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

proposed rulemaking does not involve technical standards. Therefore, EPA is not 

considering the use of any voluntary consensus standards.

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

Populations and Low-Income Populations

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

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

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

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

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

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

EPA has determined that this proposed rule will not have disproportionately high 

and adverse human health or environmental effects on minority or low-income 

populations, because it affects the level of environmental protection equally for all 

affected populations without having any disproportionately high and adverse human 

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

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

affected populations equally because ozone depletion is a global environmental problem 
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with environmental and human effects that are, in general, equally distributed across 

geographical regions in the United States.

List of Subjects in 40 CFR Part 82

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

DATED: ____________________

______________________________________________

Gina McCarthy, 

Administrator

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

follows:

PART 82- PROTECTION OF STRATOSPHERIC OZONE

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

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

2. Amend section 82.3 as follows:

a. by removing the definition of critical stock allowance;

b. by removing the definition of critical stock allowance holder;

c. by removing the definition of unexpended critical stock allowance.

3. Amend Section 82.8 by revising the table in paragraph (c)(1);

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

* * * * *

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

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

Protection of Stratospheric Ozone: The 2014 Critical Use Exemption from the 

Phaseout of Methyl Bromide (Page 39 of 43)
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VI controlled substances specifically for those approved critical uses listed in appendix L 

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

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

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

(1) * * * 

Company 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

* 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 section 82.12 by revising paragraph (a) and removing paragraph (e).

§ 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 
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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”).

* * * * *

(e) [Reserved]

5. Amend section 82.13 as follows:

a. by revising paragraph (f)(3)(iv);

b. by revising paragraph (g)(4)(vii);

c. by removing and reserving paragraph (bb)(2)(iv);

d. by removing and reserving paragraph (cc)(2)(iv).

§ 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) * * *
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(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);

* * *

(bb) * * *

(2) * * *

(iv) [Reserved];

(cc) * * *

(2) * * *

(iv) [Reserved];

6. Revise Appendix L to Subpart A to read as follows:

APPENDIX L TO SUBPART A OF PART 82 – APPROVED CRITICAL USES 

AND LIMITING CRITICAL CONDITIONS FOR THOSE USES FOR THE 2014

AND 2015 CONTROL PERIODS

Column A Column B Column C

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
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(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 and Smithfield Inc. Control 

periods 2014 and 2015.

Red legged ham beetle infestation

Cheese/ham skipper infestation

Dermestid beetle infestation

Ham mite infestation

Deleted: e

Comment [A19]: this should read

“dermestid?”