1

Arling, Jeremy

Subject: FW: EO 12866 Comments on EPA draft MeBr CUE 2016 NOPR

Attachments: EO12866 Review of EPA SNAP MeBr Criticial Use Exemption Proposed Rule - 2060-AS44 

- 3_13_2015.docx

From: Whiteman, Chad [mailto:Chad_S_Whiteman@omb.eop.gov] 

Sent: Friday, March 13, 2015 3:48 PM 

To: Donaldson, David 

Subject: EO 12866 Comments on EPA draft MeBr CUE 2016 NOPR 

Hi David, 

 Attached are the EO 12866 interagency comments on the EPA draft proposed rule titled, “Protection of Stratospheric 

Ozone: The 2016 Critical Use Exemption from the Phaseout of Methyl Bromide,” RIN: 2060-AS44. 

Regards, 

Chad 
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6560-50-P

EO12866MeBrCUE2060-AS44NPRM012015.doc

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2013-0369; FRL-9922-39-OAR]

RIN: 2060-AS44

Protection of Stratospheric Ozone: The 2016 Critical Use Exemption from the 

Phaseout of Methyl Bromide

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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

qualify for the critical use exemption and the amount of methyl bromide that may be 

produced or imported for those uses for the 2016 control period. EPA is proposing 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-Sixth Meeting of the Parties in November 2014.

DATES: Comments must be submitted by [insert date 30 days after publication in the 

federal register].

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR--

2013-0369, 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

Commented [A1]: Has EPA considered issuing a proposed rule 

for both the 2016 and 2017 control periods? If the agency has 

already proposed to the Parties of the Montreal Protocol the CUEs 

for 2017, then it would seem that including the 2017 control period 

in this rulemaking action would be a good idea. What are the pros 

and cons of doing this?

Commented [A2]: May be useful to include the month/year of 

the meeting to help explain the sequencing of events.
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 Phone: (202) 566-1742

 U.S. Mail: Docket EPA-HQ-OAR-2013-0369, 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-2013-0369, 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-2013-0369. EPA's 

policy is that all comments received will be included in the public docket without change 

and may be made available online at www.regulations.gov, including any personal 

information provided, unless the comment includes information claimed to be 

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

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

protected through www.regulations.gov or 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 
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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 or 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 website. 

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

be publicly available only in hard copy form. Publicly available docket materials are 

available either electronically through www.regulations.gov or in hard copy at the Air 

and Radiation Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW, 

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

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

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

Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For further information about this 

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

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

Stratospheric Protection Division, Stratospheric Program Implementation Branch 

(6205T), 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 

Deleted: ,
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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 year 2016. 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 2016.

I. General Information

Entities and categories of entities potentially regulated by this proposed action 

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

distributors of methyl bromide; and users of methyl bromide that applied for the 2016

critical use exemption including growers of vegetable crops, ornamentals, fruits, and 

nursery stock, and owners of stored food commodities. 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 
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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 

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 
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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 

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 

Commented [A3]: EPA is allowing CA to use methyl bromide, 

but not Florida or Georgia so it is not clear how this action does not 

limit the use of methyl bromide. Please explain.
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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 in 1988. Congress then 

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

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

Protection, codified as 42 U.S.C. Chapter 85, Subchapter VI, to ensure that the United 

States could satisfy its obligations under the Protocol. EPA issued regulations to 

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

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

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

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

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

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

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 countries operating under Article 5 of the Protocol (developing

countries).
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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. Through an interim final rule on July 19, 2001 

(66 FR 37751), and a final rule on January 2, 2003 (68 FR 238), EPA amended the 

regulations to allow for an exemption for quarantine and preshipment purposes.

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 2015.

Deleted: (QPS) 

Commented [A4]: Suggest writing out the acronym as it only 

appears three times in rule.

Deleted: 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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Under authority of section 604(d)(6) of the CAA, EPA is now proposing the uses 

that will qualify as approved critical uses for 2016, as well as the amount of methyl 

bromide that may be produced or imported to satisfy those uses. The proposed critical 

uses and amounts reflect Decision XXVI/6, taken at the Twenty-Sixth Meeting of the 

Parties in November 2014.

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

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

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

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

Brief for the Respondent,” filed in NRDC v. EPA and available in the docket for this 

proposed action. In this proposed rule on critical uses for 2016, EPA is proposing to 

honorthe 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 

Deleted: ing 

Commented [A5]: Perhaps change the order of these two 

paragraphs to introduce the Decisions first and then explain that this 

proposal reflects Decision XXVI/6.

Suggest including the total ton number here in the sentence that 

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

“critical use” at 40 CFR 82.3.

In addition, 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 [for 2016?] through a Federal 

Register notice published on May 31, 2013 (78 FR 32646). Applicants submitted data on 

their use of methyl bromide, the technical and economic feasibility of using alternatives, 

ongoing research programs into the use of alternatives in their sector, and efforts to 

minimize use and emissions of methyl bromide.

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

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

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

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

interagency workgroup reviews other parameters of the exemption applications such as 

dosage and emissions minimization techniques and applicants’ research or transition 

plans. As required in section 604(d)(6) of the CAA, for each exemption period, EPA 
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consults with the United States Department of Agriculture (USDA).

1 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.

On January 22, 2014, the United States submitted the twelfth 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 2016 critical uses. 

In March 2014, MBTOC sent questions to the United States concerning technical and 

economic issues in the 2016 nomination. The United States transmitted responses to 

MBTOC in March 2014. In May 2014, the MBTOC provided their interim

recommendations on the U.S. nomination in the May TEAP Interim Report. 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 authorized in this rule

reflect the analyses contained in those documents.

 

1 See CAA section 604(d)(6): “To the extent consistent with the Montreal Protocol, the Administrator, after 

notice and the opportunity for public comment, and after consultation with other departments or 

instrumentalities of the Federal Government having regulatory authority related to methyl bromide, 

including the Secretary of Agriculture, may exempt the production, importation, and consumption of 

methyl bromide for critical uses”

Commented [A6]: Does this happen at the same time every 

year? 

Deleted: ,
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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 and to indicate 

which uses meet the criteria for the exemption program for that year. 

This proposed action continues the approach established in the 2013 rule for 

determining the amounts of Critical Use Allowances (CUAs) to be allocated for critical 

uses. A CUA is the privilege granted through 40 CFR part 82 to produce or import 1 

kilogram (kg) of methyl bromide for an approved critical use during the specified control 

period. A control period is a calendar year. See 40 CFR 82.3. 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.

C. Proposed Critical Uses

In Decision XXVI/6, taken in November 2014, the Parties to the Protocol agreed 

“[t]o permit, for the agreed critical-use categories for 2015 and 2016 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 and 2016 set forth in table 

B of the annex to the present decision, which are necessary to satisfy critical uses ....” 

Commented [A7]: Does the table also include the quantity that 

may be used or just the critical-use categories? If it includes the 

quantities, suggest including next to the categories list below.
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The following uses are those set forth in table A of the annex to Decision XXVI/6 for the 

United States for 2016:

 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 for 2016. EPA is proposing to amend the table of 

critical uses and critical users based on the amounts permitted in Decision XXVI/6 and 

the technical analyses contained in the 2016 U.S. nomination that assess data submitted 

by applicants to the CUE program. 

***

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

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

changes to the registration (including cancellations or registrations), use, or efficacy of 

alternatives that occurred after the nomination was submitted. EPA recognizes that as the 

market for alternatives evolves, the thresholds for what constitutes “significant market 

disruption” or “technical and economic feasibility” may change. Such information has the 

potential to alter the technical or economic feasibility of an alternative and could thus 

cause EPA to modify the analysis that underpins EPA’s determination as to which uses 

and what amounts of methyl bromide qualify for the CUE. EPA is proposing to amend 

appendix L to subpart A to reflect the lists of approved critical uses authorized by the 

Parties for 2016. Specifically, EPA is proposing to remove the food processing uses that 

were listed as critical uses for 2014. The California Date Commission as well as all users 

under the food processing use (rice millers, pet food manufacturing facilities, and 

members of the North American Millers’ Association) did not submit CUE applications 

Commented [A8]: Reproduce proposed (amended) table here? 

Or at least indicate amounts?

Might also be helpful to identify critical uses, critical use amounts, 

and critical users for the prior year (or even reproduce the table 

found at http://www.epa.gov/ozone/mbr/cueinfo.html

to demonstrate that CUE amounts are steadily declining?

Commented [A9]: Move paragraphs marked *** (below) to 

here, as they offer more detail on the specific proposed amendments 

to the table of critical uses and users?

Deleted: EPA notes that it will not finalize a rule containing uses 

beyond those agreed to by the Parties for 2016.¶
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for 2016 and therefore were not included in the 2016 U.S. nomination to the Parties of the 

Montreal Protocol.

EPA is also proposing to remove the remaining commodity uses (walnuts, dried 

plums, figs, and raisins). These sectors applied for a critical use in 2016 but the United 

States did not nominate them for 2016. In addition, some sectors that were not on the list 

of critical uses for 2014 or 2015 submitted applications for 2016. These sectors are: 

Michigan cucurbit, eggplant, pepper, and tomato growers; Florida eggplant, pepper, 

strawberry, and tomato 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; and the U.S. Golf Course Superintendents 

Association. 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 these users

did not meet the critical use criteria in Decision IX/6 and the United States therefore did 

not include them in the 2016 Critical Use Nomination. EPA notified these sectors of their 

status by letters dated March 28, 2014. For each of these uses, EPA found that there are 

technically and economically feasible alternatives to methyl bromide. EPA requests 

comment on the technical assessment of the applications and the determination that these 

users did not meet the critical use criteria and whether there is any new or additional 

information that the agency may consider. 

D. Proposed Critical Use Amounts 

Commented [A11]: Please provide the technical assessment.

Commented [A12]: Will EPA simply specify the other 

agencies...”the Department of State in consultation with EPA and 

USDA determined...”

Commented [A13]: Please include a discussion concerning how 

the agency arrived at this conclusion that there are technically and 

economically feasible alternatives to methyl bromide. EPA 

references the cost analysis that was conducted so it would be 

helpful to describe this in the preamble and go out for comment on 

the assumptions.

Commented [A14]: Move these paragraphs to *** above?
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Table A of the annex to Decision XXVI/6 lists critical uses and amounts agreed to 

by the Parties to the Montreal Protocol for 2016. The maximum amount of new 

production and import for U.S. critical uses in 2016, specified in Table B of the annex to

Decision XXVI/6, is 234.78 MT, minus available stocks. This figure is equivalent to less 

than 1 percent of the U.S. 1991 methyl bromide consumption baseline of 25,528 MT.

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 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. Applying this approach, 

EPA is proposing to allocate allowances to exempt 234,780 kg of new production and 

import of methyl bromide for critical uses in 2016.

Available Stocks: For 2016 the Parties indicated that the United States should use 

“available stocks,” but did not indicate a minimum amount expected to be taken from 

stocks. Consistent with EPA’s past practice, EPA is considering what amount, if any, of

the existing stocks may be available to critical users during 2016. The latest data reported 

to EPA from December 31, 2013, show existing stocks to be 356,561 kg. These data do 

not reflect drawdown of stocks that occurred during 2014 or that is likely to occur during 

2015.

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

stocks may differ from the level of available stocks. Decision XXVI/6 states that 

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

Commented [A15]: Does this mean the uses have to be satisfied 

from available stocks first? Below, there is a proposal to?

Commented [A16]: Is this an EPA rule or reference to a MP 

rule? Please provide the citation if not already provided previously. 

Commented [A17]: Suggest using the same units of MT to 

avoid any confusion. Or, list the kg number alongside the ton 

number in the previous paragraph.... “is 234.78 MT (234,780 kg), 

minus available...”

Commented [A18]: How certain is this number? Also, the 

agency indicates on p. 17 that it does not include quantities that end 

users have stockpiled. Do we have any idea the size of those 

stockpiles?

Regarding existing stockpiles, what is EPA’s view on whether 

there’s legal authority under CAA/obligation under MP to regulate 

the use of any MeBr stockpiled by end users (golf courses, etc.)?
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only if methyl bromide is not available in sufficient quantity and quality from existing 

stocks....” In addition, the Decision states that “parties operating under critical-use 

exemptions should take into account the extent to which methyl bromide is available in 

sufficient quantity and quality from existing stocks....” Earlier Decisions also refer to the

use of “quantities of methyl bromide from stocks that the Party has recognized to be 

available.” Thus, it is clear that individual Parties may determine their level of available 

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

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

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

discretion under this provision.

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

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

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

The final rule found that 0% was available 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 2016. First, EPA believes that 

stocks were likely drawn down significantly in 2014. In part, this is because, as a 

consequence of changes in FIFRA labeling, the last date for sale of pre-phaseout methyl 

bromide for golf courses was November 30, 2014. EPA is aware that end users worked to 

secure supplies prior to that date. Supplies of methyl bromide in the hands of end users 

Commented [A19]: Will EPA explain this legal interpretation to 

help us understand why the agency does not regulate existing 

stocks?

Commented [A20]: Please provide the FR citation.
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are not included in calculating existing stocks. Second, while stocks remain distributed 

nationally, the only pre-plant critical use permitted for 2016 is strawberry fruit in 

California. This is also the only pre-plant sector that can continue to purchase stocks in 

2015 as a result of the changes to FIFRA labeling, except for sectors with quarantine and 

preshipment uses. Therefore, EPA anticipates much of the inventory in California to be 

drawn down in 2015.

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

for use in 2016. EPA specifically invites comment on whether between 0% and 5% of 

existing inventory will be available to critical users in 2016, taking into consideration the 

FIFRA labeling changes, 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, 2013, 

were estimated to be equal to 356,561 kg. Therefore, 5% would be 17,828 kg. Were EPA 

to find 5% of existing stocks to be available, EPA would reduce the amount of new 

production for 2016 by that amount.

Carryover Material: 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 

Commented [A21]: Please discuss the petitions received by 

Florida and Georgia strawberry growers, the reason for rejecting 

their request, and request comment on whether there is any new 

information that EPA should consider when issuing the final rule. 

Deleted: QPS 

Commented [A22]: Suggest revising this sentence/paragraph to 

clarify. In another sentence in the preamble, the agency says, “The 

maximum amount of new production and import for U.S. critical 

uses in 2016 ... is 234.78 MT, minus available stocks”

Why just 0% and 5% and not the range of numbers in between? 

Deleted: or

Commented [A23]: To what does this refer?

Commented [A24]: Is there a difference between the existing 

inventory, and the “existing pre-2005 inventory”?
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data report. So for example, the amount of carryover from 2014 is factored into the 

determination for 2016. 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.

EPA anticipates that all critical use methyl bromide that companies reported to be 

produced or imported in 2014 will be sold to end users for that year. EPA bases this 

assumption on the fact that there has been no carryover for the last four years. EPA notes 

that the agency will look at the reported 2014 data when issuing the final rule. Therefore,

EPA is proposing to apply a carryover deduction of 0 kg to the new production amount

for 2016, 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. All U.S. 

Accounting Frameworks for critical use methyl bromide 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. Neither circumstance has occurred since the nomination was 

submitted for 2016.

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

account for availability of alternatives. Rates of transition to alternatives have already 

been applied for permitted 2016 critical use amounts through the nomination and 

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

Commented [A25]: Could EPA explain this more easily by 

saying something like, “any excess MeBr left from any given year’s 

CUE is “carried over,” and EPA reduces the next year’s CUE 

request by this amount.” Does EPA add each year’s carryover 

amount to the “existing inventory,” because that term is used to refer 

only to the amount of MeBr that existed as of January 1, 2005 when 

[something happened?]?

Would be helpful if EPA included the actual numbers and requested 

comment on the values.

Commented [A26]: What does “end users for that year” mean? 

Will be sold and used in that year?

Also note that tense is off as this is coming out in 2015.

Commented [A27]: Does the agency actually apply rates of 

transition to alternatives? Or is it just that the 2016 critical use 

amounts reflect the possible use of alternatives? Please clarify the 

meaning of this sentence.
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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 critical use allowances for new 

production or import of methyl bromide equivalent to 234,780 kg to the four companies 

that hold baseline allowances, in proportion to their respective baselines. Paragraph 3 of 

Decision XXVI/6 states 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 

Commented [A28]: Perhaps specify the companies here, or at 

least cite table on pp. 27-28?
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approach adopted in the Framework Rule, the actual critical use will closely follow the 

sector breakout listed in the Parties’ decisions.

Emergency Use: The U.S. government is committed to using flexibility in the 

Protocol's existing mechanisms as an avenue to address changes in national circumstance 

that affect the transition to alternatives. EPA welcomes comments and any new 

information 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.

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

Decision XXVI/6 calls 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 2016 control period. 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 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 paragraph (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, 
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February 6, 2006) as well as to the memo in the docket titled “Development of 2003 

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

America” for further elaboration. As explained in those documents, EPA’s interpretation 

of this term has several dimensions, including looking at potential effects on both demand 

and supply for a commodity, evaluating potential losses at both an individual level and at 

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

The remaining considerations are addressed in the nomination documents

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

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

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

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

consider and implement MBTOC recommendations, where feasible, on 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.

F. Emissions Minimization

Previous Decisions of the Parties have stated that critical users shall employ 

emissions minimization techniques such as virtually impermeable films, barrier film 

Commented [A29]: This section is difficult to follow; perhaps 

re-summarize the conditions imposed by the two Decisions 

(introduced on pp. 10-11 and 13 above), and then summarize 

preexisting interpretation(s) of those conditions? 
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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)2for 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. 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 emissions reduction techniques. The federal 

government has invested substantial resources into developing and implementing best 

practices for methyl bromide use, including emissions reduction practices. The 

Cooperative Extension System, which receives some support from USDA-NIFA,

provides locally appropriate and project-focused outreach education regarding methyl 

bromide transition best practices. Additional information on USDA research on 

alternatives and emissions reduction can be found at: 

 

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

http://epa.gov/pesticides/reregistration/soil_fumigants/

Commented [A30]: Are they disallowed in some jurisdictions, 

or is use just infeasible in some areas?
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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 provide information on such techniques with their critical use 

applications.

III. Statutory and Executive Order Reviews

Additional information about these statutes and Executive Orders can be found at 

http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

Improving Regulation and Regulatory Review

This action is a significant regulatory action that was submitted to the Office of 

Management and Budget (OMB) for review. This action was deemed to raise novel legal 

or policy issues. Any changes made in response to OMB recommendations have been 

documented in the docket. 

B. Paperwork Reduction Act (PRA)

This action does not impose any new information collection burden under the 

PRA. OMB has previously approved the information collection activities contained in the 

existing regulations and has assigned OMB control number 2060-0482. The application, 

recordkeeping, and reporting requirements have already been established under previous 

critical use exemption rulemakings.

C. Regulatory Flexibility Act (RFA)
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I certify that this action will not have a significant economic impact on a 

substantial number of small entities under the RFA. In making this determination, the 

impact of concern is any significant adverse economic impact on small entities. 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 regulatory burden, has no net 

burden or otherwise has a positive economic effect on 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. We have therefore concluded that this action will relieve regulatory 

burden for all directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate as described in UMRA, 2 

U.S.C. 1531-1538. The action imposes no enforceable duty on any state, local or tribal 

governments or the private sector.

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.

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

Governments 

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

13175. This rule does not significantly or uniquely affect the communities of Indian tribal 

Commented [A31]: Does the rule limit in which states the CUE 

applies? The CUE for strawberries is just for CA growers while GA 

and FL growers were not given exemptions. For the manufacturers 

that were granted CUEs, are they restricted to using methyl bromide 

in just California or could they also use it in other states where they 

may operate?
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governments nor does it impose any enforceable duties on communities of Indian tribal 

governments. Thus, Executive Order 13175 does not apply to this action. 

G. Executive Order 13045: Protection of Children from Environmental Health and Safety 

Risks

This action is not subject to Executive Order 13045 because it is not economically 

significant as defined in Executive Order 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 action’s health and risk assessments are contained 

in the Regulatory Impacts Analysis and Benefits Analysis found in the docket.

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

or Use

This action is not a “significant energy action” because it is not likely to have a 

significant adverse effect on the supply, distribution or use of energy. This action does 

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

manner of energy use. 

I. National Technology Transfer and Advancement Act

This rulemaking does not involve technical standards.

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

Populations and Low-Income Populations

EPA believes this action 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 
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population, including any minority or low-income population. Any ozone depletion that 

results from this action 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.

Populations that work or live near fields or other application sites may benefit from the 

reduced amount of methyl bromide applied, as compared to amounts allowed under 

previous critical use exemption rules.

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:

Protection of Stratospheric Ozone: The 2016 Critical Use Exemption from the 

Phaseout of Methyl Bromide (Page 27 of 28)

Commented [A32]: Wouldn’t it impact those who work 

outdoors more than others and disproportionately poor and minority 

(agricultural workers)? 
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Authority: 42 U.S.C. 7414, 7601, 7671-7671q.

2. 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 2016 Critical use allowances for 

pre-plant uses* (kilograms)

2016 Critical use allowances for 

post-harvest uses* (kilograms)

Great Lakes Chemical Corp.

A Chemtura Company

140,707 1,969

Albemarle Corp. 57,862 810

ICL-IP America 31,976 447

TriCal, Inc. 996 14

Total 231,540 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.

* * * * * 

3. 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 2016

CONTROL PERIOD 

Column A Column B Column C

Approved 

Critical 

Uses

Approved Critical User, Location of 

Use

Limiting Critical Conditions

that exist, or that the approved critical user 

reasonably expects could arise without 

methyl bromide fumigation:

PRE-PLANT USES
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Strawberry 

Fruit

California growers. Moderate to severe black root rot or crown rot

Moderate to severe yellow or purple nutsedge 

infestation

Moderate to severe nematode infestation

Local township limits prohibiting 1,3-

dichloropropene

POST-HARVEST USES

Dry Cured 

Pork 

Products

Members of the National Country Ham 

Association and the American Association 

of Meat Processors, Nahunta Pork Center 

(North Carolina), and Gwaltney of

Smithfield Inc.

Red legged ham beetle infestation

Cheese/ham skipper infestation

Dermestid beetle infestation

Ham mite infestation