[House Report 112-679]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     112-679

======================================================================



 
              U.S. AGRICULTURAL SECTOR RELIEF ACT OF 2012

                                _______
                                

 September 19, 2012.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Upton, from the Committee on Energy and Commerce, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 6194]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 6194) to ensure the viability and 
competitiveness of the United States agricultural sector, 
having considered the same, report favorably thereon without 
amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................     6
Committee Consideration..........................................     7
Committee Votes..................................................     7
Committee Oversight Findings.....................................     9
Statement of General Performance Goals and Objectives............     9
New Budget Authority, Entitlement Authority, and Tax Expenditures     9
Earmark..........................................................     9
Committee Cost Estimate..........................................     9
Congressional Budget Office Estimate.............................     9
Federal Mandates Statement.......................................    10
Advisory Committee Statement.....................................    10
Applicability to Legislative Branch..............................    10
Section-by-Section Analysis of Legislation.......................    10
Changes in Existing Law Made by the Bill, as Reported............    11
Dissenting Views.................................................    15

                          Purpose and Summary

    H.R. 6194, the ``U.S. Agricultural Sector Relief Act of 
2012,'' was introduced by Representative Phil Gingrey, M.D., on 
July 25, 2012 (together with Representatives Bishop, Conaway, 
Costa, Ellmers, Lucas, Rooney, Schmidt, Southerland, Terry, 
Walden, and Whitfield). The legislation seeks to ensure that 
the U.S. agricultural sector has access to sufficient 
quantities of the fumigant methyl bromide for critical uses. 
Key provisions of this bill would:
     Direct the EPA Administrator to seek critical use 
exemptions under the Montreal Protocol treaty process for the 
full quantities needed for critical uses.
     Direct the EPA Administrator to allow use of 
limited amounts of methyl bromide in response to emergency 
events at farms, nurseries, and food processing and storage 
facilities where needed to control a pest or disease.

                  Background and Need for Legislation

    For decades, methyl bromide was widely used as a fumigant 
to control pests, including for the cultivation of a variety of 
crops, including strawberries, tomatoes, peppers, eggplant, 
flowers, and tree and vine crops, and at grain mills, food 
storage and food processing facilities. Pursuant to the 
Montreal Protocol on Substances that Deplete the Ozone Layer 
(Montreal Protocol), methyl bromide in the U.S. has been phased 
out except for allowable exemptions, including critical uses. 
H.R. 6194 addresses concerns relating to U.S. critical use 
exemptions under the treaty process.

                  STATUTORY AND REGULATORY BACKGROUND

    The Montreal Protocol is an international environmental 
treaty designed to reduce the release of ozone-depleting 
substances into the atmosphere by restricting their production 
and consumption. The treaty was originally signed by the U.S. 
in 1987 and entered into force in 1989. To implement the 
treaty, Congress amended the Clean Air Act in 1990 and 1998 to 
add provisions to protect the stratospheric ozone layer. These 
provisions are set forth in Title VI of the Clean Air Act, 
which is administered by the U.S. Environmental Protection 
Agency (EPA).
    The Montreal Protocol treaty sets schedules for developed 
and developing countries to gradually phase out the use of 
ozone-depleting substances according to a schedule that 
differentiates between industrialized and developing 
countries.\1\ Methyl bromide was added to the list of ozone-
depleting substances covered by the treaty in 1992. Under the 
treaty, the U.S. and other industrialized countries phased out 
production and consumption of methyl bromide in 2005 except for 
allowable exemptions.
---------------------------------------------------------------------------
    \1\Ozone-depleting substances scheduled for phaseout in the U.S. 
include halons, chlorofluorocarbons (CFCs), carbon tetrachloride, 
hydrobromofluorocarbons (HBFCs), methyl chloroform, chlorobromomethane, 
methyl bromide, and hydrochlorofluorocarbons (HCFCs).
---------------------------------------------------------------------------
    Under the treaty, Parties to the Montreal Protocol have 
authority to approve exemptions from the phaseout of methyl 
bromide for ``critical'' uses that are nominated by a given 
country. In 1997, the Parties issued Decision IX/6, which 
defines a use to be critical if ``the lack of availability of 
methyl bromide for that use would result in a significant 
market disruption,'' and ``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.'' In addition, in 1997 the Parties also issued 
Decision IX/7, allowing for use of methyl bromide in response 
to emergency events, in an amount up to 20 tons per event.
    To allow for critical uses in the U.S., EPA issued a final 
rule in 2004 entitled ``Protection of Stratospheric Ozone: 
Process for Exempting Critical Uses From the Phaseout of Methyl 
Bromide.''\2\ The rule established a critical use exemption 
(CUE) process for U.S. growers and set forth a list of approved 
critical uses, including pre-plant uses for cultivation of 
cucurbits, eggplant, forest seedlings, ginger, orchard nursery 
seedlings, orchard replant, ornamentals, peppers, strawberry 
nurseries, strawberry fruit, sweet potatoes, tomatoes and 
turfgrass, and post-harvest uses including for food processing 
and commodity storage.
---------------------------------------------------------------------------
    \2\See 69 Fed. Reg. 76982 (Dec. 23, 2004). Under the Montreal 
Protocol treaty, there is also an allowable exemption, not addressed in 
H.R. 6194, for the production and consumption of methyl bromide for 
quarantine and preshipment purposes.
---------------------------------------------------------------------------
    Pursuant to the CUE process, EPA annually solicits and 
reviews applications from growers and grower groups to 
determine whether technically and economically feasible 
alternatives available to the applicant, and whether there 
would be significant market disruption if no exemption were 
available. The process culminates in the submission of a 
critical use nomination by the U.S. Department of State to the 
United Nations Environment Programme Ozone Secretariat. After a 
decision is made by the Parties to the Montreal Protocol, EPA 
issues a regulation authorizing critical uses and amounts for 
the relevant year consistent with that decision.
    To facilitate the research and development of methyl 
bromide alternatives, Congress has since 2000 appropriated 
nearly $300 million to the U.S. Department of Agriculture 
(USDA) for research. The U.S. agricultural sector also has 
committed significant time, resources, and funds to identify 
alternatives and conduct research, and there are substantial 
ongoing efforts at USDA, land-grant universities, and in the 
private sector to develop viable alternatives. The Committee is 
encouraged by the work of these entities and hopes that 
alternatives will continue to be developed and adopted.

                          NEED FOR LEGISLATION

    U.S. critical use exemption nominations submitted by the 
U.S. Department of State to the United Nations Environment 
Programme Ozone Secretariat on behalf of America's agricultural 
and food sector have declined steeply since 2005, and the most 
recent U.S. nominations represent less than 10 percent of the 
quantity of methyl bromide first approved for exemption in 
2005. While alternatives (with varying degrees of 
effectiveness) have been developed for agricultural 
applications, a number of growers testified at a July 18, 2012, 
legislative hearing that they and others in their industry are 
concerned about the current exemption process and the continued 
need for methyl bromide for critical uses.\3\
---------------------------------------------------------------------------
    \3\At the July 18, 2012 hearing, the following growers testified: 
Mark Murai who is President of the California Strawberry Commission and 
third-generation California strawberry farmer; Scott DiMare who is Vice 
President and Director of Farm Operations for Dimare Ruskin, Inc. and 
Florida tomato farmer; Michelle Keeler who is Vice-President of Mellano 
& Company, a California grower and testified on behalf of the Society 
of American Florists; and Russell Costanza who is owner of Russell 
Costanza Farms in Michigan and grows peppers, eggplant, squash, 
tomatoes and cucumbers.
---------------------------------------------------------------------------
    For example, growers expressed concern about the lack of 
access to methyl bromide under the current process and 
testified that that in some cases viable methyl bromide 
alternatives do not yet exist, existing alternatives are not 
effective, or there is a resurgence of pests or disease several 
years after transitioning to alternatives. Witnesses testified 
that the recent withdrawal from the U.S. market of methyl 
iodide, marketed as ``Midas,'' has left certain growers without 
a viable methyl bromide alternative. EPA is also currently 
proposing to phase out the tolerances for sulfuryl fluoride, 
which is a primary alternative to methyl bromide for certain 
post-harvest uses.
    Growers further raised concerns that under the current CUE 
process exemption applications have been arbitrarily reduced by 
EPA and the Methyl Bromide Technical Options Committee (MBTOC), 
which is an advisory body that reviews U.S. CUE nominations and 
makes recommendations to the Parties. For example, California 
Strawberry Commission President Mark Murai testified ``our 
applications continue to be arbitrarily reduced without any or 
inadequate scientific explanation,'' and that ``the rules keep 
changing every page we turn.'' Similarly, Society of American 
Florists representative Michelle Keeler testified that 
``[d]espite having submitted CUE applications substantiating 
their need for the product in accordance with the provisions of 
the Protocol, U.S. growers are being forced to take arbitrary 
cuts in their requested levels, with absolutely no scientific 
reasoning and no justification.''
    Growers also testified that insufficient access to methyl 
bromide threatens significant economic hardship and job losses 
within the agricultural sector. For example, California 
Strawberry Commission President Mark Murai testified that a 
University of California Davis economic study commissioned by 
the California Department of Food and Agriculture has concluded 
that without access to methyl bromide ``California communities 
will lose over $1.5 billion annually and more than 23,000 jobs 
annually.'' Society of American Florists representative 
Michelle Keeler testified that without access to methyl bromide 
``U.S. growers will be rendered noncompetitive in the global 
marketplace. This will force many to cease operations, killing 
jobs and causing significant harm to the local communities in 
which we operate at a time of great economic uncertainty.'' 
Florida tomato grower Scott DiMare testified that ``[a]s an 
industry that is struggling to remain competitive in the 
globally expanding sourcing of fresh vegetables, we have seen 
our fumigation costs triple since the mainstay of our 
production system, methyl bromide, has come under regulatory 
restrictions dictated by the Montreal Protocol on Substances 
that Deplete the Ozone Layer and its implementation under the 
US Clean Air Act.'' Michigan vegetable farmer Russell Costanza 
testified that ``I cannot overstate the importance of access to 
methyl bromide for my farm operation and my fellow Michigan 
growers. We are facing a crisis and need relief.''
    The Committee has received numerous letters of support for 
H.R. 6194 expressing concerns about the current critical use 
exemption process and the availability of methyl bromide for 
critical uses, including from the following entities:
          Agricultural Trade Services
          Almond Hullers & Processors Association
          American Farm Bureau Federation
          American Nursery & Landscape Association
          AG-Fume Services
          California Citrus Mutual
          California Grape and Tree Fruit League
          California Strawberry Farmers and Shippers\4\
          Florida Farm Bureau Federation
          Florida Fruit and Vegetable Association
          Florida Tomato Exchange
          Georgia Farm Bureau Federation
---------------------------------------------------------------------------
    \4\Letters were submitted by Aptos Berry Farms, Del Mar Food 
Products, Corp., Dole Berry Company, Dole Fresh Berry Co., Driscoll's, 
Driscoll Strawberry Associates, Inc., Garroutte Farms, Inc., M. Chavez 
& Son Farming, Inc., Mira Mar Farms, Nagata Brothers, Naturipe Berry 
Growers Inc., Otilio Farms, LLC, Providence Farms LLC, Rancho 
Guadalupe, LLC, RBI, Shelford Associates, Solmar Farms, Inc., Sunrise 
Growers, Uesugi Farms, Inc., Uyematsu, Inc., Well-Pict Berries and 
other California strawberry growers.
---------------------------------------------------------------------------
          Georgia Fruit & Vegetable Growers Association
          Holzinger Flowers Inc.
          Hopkinsville Milling Company
          Knappen Milling Company
          Lassen Canyon Nursery, Inc.
          Maritime Exchange for the Delaware River and Bay
          Leitz Farms LLC
          North American Millers Association
          Northwest Horticultural Council
          Produce Marketing Association
          Society of American Florists
          Star of the West Milling Co.
          Sunkist Growers
          Sunshine State Carnations, Inc.
          Sunsweet
          TriCal/TriEst
          USA Rice Federation
          Western Growers Association
          Western Industries
    Letters expressing concern about the continued availability 
of methyl bromide for critical uses were also submitted by the 
California Date Commission and California Walnut Commission.
    In addition, a number of companies submitted letters 
specifically raising concerns due to EPA's pending proposal to 
phase out use of sulfuryl fluoride, which is a primary 
alternative to methyl bromide for certain post-harvest uses. 
These uses include to control stored product pests in cereal 
grains (e.g., wheat, corn, and rice, and the mills that process 
these grains), tree nuts (e.g., walnuts, almonds), dried fruits 
(e.g., raisins, dried plums); dried legumes (e.g., garbanzo 
beans, black-eyed peas), cocoa beans, and coffee beans. While 
EPA has solicited further comment with respect to its initial 
proposal to withdraw the tolerances for food uses of sulfuryl 
fluoride, a product critical to the protection of U.S. 
agriculture, there is currently uncertainty about the outcome 
of this rulemaking process.

     WHAT THE U.S. AGRICULTURAL SECTOR RELIEF ACT OF 2012 WOULD DO

    H.R. 6194 directs the EPA Administrator to continue to seek 
critical use exemptions under the Montreal Protocol treaty 
process for the full amounts of methyl bromide needed by U.S. 
farmers. It requires EPA, when considering exemption 
applications, to demonstrate in writing that there is 
substantial evidence to establish that a technically and 
economically feasible alternative is available to an applicant, 
and expressly requires that the agency consider cost, 
commercial availability, demonstrated effectiveness, and State 
or local regulations that may restrict its use when evaluating 
potential alternatives. The bill also directs that if a methyl 
bromide alternative is removed from the U.S. market, the EPA 
Administrator shall seek to address the shortfall under the 
treaty process. The bill also supports development of 
alternatives by directing EPA to take action to ensure that 
sufficient quantities of methyl bromide are available for 
research on methyl bromide alternatives for the agricultural 
sector.
    H.R. 6194 also directs EPA to set up a process, in 
consultation with U.S. Department of Agriculture, to address 
emergency situations that may arise at a farm, nursery, or food 
processing or storage facility where methyl bromide is needed 
to control a pest of disease. The bill specifically directs the 
EPA Administrator, in consultation with the Secretary of 
Agriculture, to issue regulations for these emergency uses. The 
bill also limits emergency uses in any calendar year to the 
total amount authorized under the Montreal Protocol for the 
U.S. in 2011, which was 2,055 metric tons.
    While this legislation would ensure that EPA continues to 
pursue critical use nominations for the limited quantities of 
methyl bromide still needed by the U.S. agricultural sector, it 
would not have an adverse impact on the environment. In the 
U.S., the use of methyl bromide has dramatically decreased, and 
H.R. 6194 addresses only those limited amounts still needed by 
U.S. farmers and growers. Currently, methyl bromide comes 
primarily from natural sources, most of which is destroyed in 
the troposphere, and according to a 2010 report issued by the 
World Meteorological Organization, methyl bromide from human 
activities is responsible for only 0.03% of ozone depleting 
substances entering the atmosphere. H.R. 6194 does not 
authorize the use of methyl bromide in quantities greater than 
the 2011 Montreal Protocol authorized level.

                                Hearings

    On July 18, 2012, the Subcommittee on Energy and Power held 
a legislative hearing on the ``U.S. Agricultural Sector Relief 
Act of 2012,'' and received testimony from:
           Mark Murai, President, California Strawberry 
        Commission;
           Michelle Castellano Keeler, Vice President, 
        Mellano & Company on behalf of the Society of American 
        Florists;
           Russell Costanza, Owner, Russell Costanza 
        Farms;
           Scott M. Dimare, Vice President & Director 
        of Farm Operations, Dimare Ruskin, Inc.;
           David Doniger, Policy Director, Climate & 
        Clean Air Program, Natural Resources Defense Council; 
        and,
           Regina McCarthy, Assistant Administrator for 
        Air and Radiation, U.S. Environmental Protection Agency 
        (Written Statement for the Record).

                        Committee Consideration

    H.R. 6194 was introduced on July 25, 2012, by 
Representative Phil Gingrey (together with Representatives 
Bishop, Conaway, Costa, Ellmers, Lucas, Rooney, Schmidt, 
Southerland, Terry, Walden, and Whitfield).
    On July 18, 2012, the Subcommittee on Energy and Power held 
a legislative hearing on the H.R.___, the ``U.S. Agricultural 
Sector Relief Act of 2012.''
    On July 18 and 19, 2012, the Subcommittee on Energy and 
Power met in open markup session. Three amendments were offered 
and adopted by voice vote. On July 19, 2012, the Subcommittee 
on Energy and Power reported the bill favorably to the full 
Committee by a roll call vote of 15 ayes and 6 nays.
    On July 31 and August 1, 2012, the Committee on Energy and 
Commerce met in open markup session and ordered H.R. 6194 
reported to the House by a roll call vote of 28 ayes and 16 
nays.

                            Committee Votes

    Clause 3(b) of rule XII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report legislation and amendments thereto. A 
motion by Mr. Upton to order H.R. 6194, reported to the House, 
as amended, was agreed to by a record vote of 28 ayes and 16 
nays. The following reflects the recorded votes taken during 
the Committee consideration, including the names of those 
Members voting for and against.


                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee made findings that are 
reflected in this report.

         Statement of General Performance Goals and Objectives

    H.R. 6194 directs the Administrator of the Environmental 
Protection Agency to seek critical use exemptions under the 
Montreal Protocol treaty process to ensure the availability of 
methyl bromide where no viable alternative is available. In 
addition, H.R. 6194 allows for the use of limited amounts of 
methyl bromide in response to emergency events at farms, 
nurseries, food processing facilities, or commodities storage 
facilities that require use of methyl bromide to control pests 
or diseases.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
6194, the ``U.S. Agricultural Sector Relief Act of 2012,'' 
would result in no new or increased budget authority, 
entitlement authority, or tax expenditures or revenues.

                                Earmark

    In compliance with clause 9(e), 9(f), and 9(g) of rule XXI, 
the Committee finds that H.R., the ``U.S. Agricultural Sector 
Relief Act of 2012,'' contains no earmarks, limited tax 
benefits, or limited tariff benefits.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.

                  Congressional Budget Office Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
provided by the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974.

H.R. 6194--U.S. Agriculture Sector Relief Act of 2012

    H.R. 6194 would require the Environmental Protection Agency 
(EPA) to seek critical-use exemptions under the Montreal 
Protocol for applications submitted to the agency for the 
production, importation, and consumption of methyl bromide.
    Methyl bromide is a chemical compound commonly used in 
pesticides, though its use has been mostly phased out since 
2005 under the Montreal Protocol, an international treaty to 
reduce ozone-depleting substances. Under the Clean Air Act 
(CAA), EPA may grant critical-use exemptions for methyl bromide 
producers, importers, and users after consulting with the other 
parties to the Montreal Protocol. H.R. 6194 would prohibit EPA 
from denying critical-use applications for methyl bromide 
unless EPA has substantial evidence that there is a better 
alternative for this chemical. This legislation also would 
expand producers' ability to claim emergency exemptions for 
limited amounts of methyl bromide.
    To implement those changes related to the use of methyl 
bromide under the CAA, EPA would need to issue regulations and 
establish a methyl bromide emergency program. Based on 
information from EPA, CBO estimates that developing and issuing 
such regulations and administering a new program would cost 
less than $500,000 annually over the 2013-2017 period, subject 
to the availability of appropriated funds.
    Pay-as-you-go procedures do not apply to H.R. 6194 because 
the bill would not affect direct spending or revenues.
    H.R. 6194 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Susanne S. 
Mehlman. The estimate was approved by Peter H. Fontaine, 
Assistant Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

               Section-by-Section Analysis of Legislation


Section 1--Short title

    This section provides the short title of ``U.S. 
Agricultural Sector Relief Act of 2012.''

Section 2--Ensuring the availability of methyl bromide for critical 
        uses

    This section amends section 604(h) of the Clean Air Act 
relating to the phase-out of methyl bromide under the Montreal 
Protocol treaty.
    Section 2(a) directs (i) that the Environmental Protection 
Agency Administrator, for each calendar year, take all 
appropriate actions within the agency's authority to seek a 
critical use exemption under the treaty for the full amount of 
methyl bromide necessary for approved critical uses; (ii) that 
the Administrator shall not deny or reduce an application 
unless the Administrator has substantial evidence, provided to 
the applicant in writing, establishing there is a technically 
and economically feasible alternative; and (iii) that the 
Administrator, in evaluating any potential alternatives, shall 
consider the cost, commercial availability, and demonstrated 
effectiveness of the alternative, and consider any State or 
local regulations that may restrict its use.
    Section 2(a) also directs that the Administrator allow for 
the use of methyl bromide in response to emergency events, in 
an amount necessary up to 20 metric tons. Section 2(a) further 
provides that the aggregate amount of methyl bromide allowed 
for use in response to emergency events in the United States in 
a calendar year shall not exceed the total amount authorized by 
the Parties to the Montreal Protocol for the United States for 
critical uses in 2011.
    Section 2(a) also directs the Administrator to take all 
appropriate actions to ensure sufficient quantities of methyl 
bromide are available for research on methyl bromide 
alternatives.
    Section 2(a) also directs that when an alternative is 
removed from the U.S. market, the Administrator review and take 
action as appropriate to adjust any critical use nomination 
submitted to the Parties to the Montreal Protocol to address 
the shortfall.
    Section 2(a) also provides the following definitions:
          (1) The term ``approved critical use'' means approved 
        critical uses found in Appendix L to subpart A of part 
        82 of title 40, Code of Federal Regulations, as in 
        effect on January 1, 2005;
          (2) The term ``critical use'' means a circumstance in 
        which (i) there are no technically and economically 
        feasible methyl bromide alternatives or substitutes 
        acceptable from the standpoint of environment and 
        health and are suitable to the crops and circumstances 
        involved; and (ii) the lack of methyl bromide for a 
        particular use would result in significant market 
        disruption;
          (3) The term ``emergency event'' means a situation at 
        a farm, nursery, food processing facility, or 
        commodities storage facility that requires the use of 
        methyl bromide to control a pest or disease, and for 
        which there is no critical use exemption in effect, or 
        insufficient quantities of methyl bromide available 
        under an existing critical use exemption, for such 
        site.
    Section 2(b) directs the Administrator, in consultation 
with the Secretary of Agriculture, to issue final regulations 
relating to emergency events, including in the regulations 
criteria for identifying an emergency event and provisions to 
ensure the timely approval or disapproval of emergency event 
applications.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                             CLEAN AIR ACT




           *       *       *       *       *       *       *
TITLE VI--STRATOSPHERIC OZONE PROTECTION

           *       *       *       *       *       *       *


SEC. 604. PHASE-OUT OF PRODUCTION AND CONSUMPTION OF CLASS I 
                    SUBSTANCES.

  (a) * * *

           *       *       *       *       *       *       *

  (h) Methyl Bromide.--[Notwithstanding]
          (1) In general.--Notwithstanding subsection (d) and 
        section 604(b), the Administrator shall not terminate 
        production of methyl bromide prior to January 1, 2005. 
        The Administrator shall promulgate rules for reductions 
        in, and terminate the production, importation, and 
        consumption of, methyl bromide under a schedule that is 
        in accordance with, but not more stringent than, the 
        phaseout schedule of the Montreal Protocol Treaty as in 
        effect on the date of the enactment of this subsection.
          (2) Critical use exemptions and emergency events.--
                  (A) Critical use exemptions.--
                          (i) In general.--For each calendar 
                        year, beginning with 2013, the 
                        Administrator, pursuant to an 
                        application submitted by any person, 
                        shall take all appropriate actions 
                        within the authority of the 
                        Environmental Protection Agency to seek 
                        a critical use exemption under the 
                        Montreal Protocol in order to allow the 
                        production, importation, and 
                        consumption of methyl bromide--
                                  (I) for any use of methyl 
                                bromide that--
                                          (aa) is an approved 
                                        critical use; and
                                          (bb) is determined by 
                                        the Administrator to be 
                                        a critical use for the 
                                        applicant; and
                                  (II) in the amount necessary 
                                for the use described in 
                                subclause (I).
                          (ii) Applications.--The Administrator 
                        shall not deny any application referred 
                        to in clause (i), or reduce the amount 
                        requested under any such application, 
                        unless the Administrator--
                                  (I) has substantial evidence 
                                to establish that there is a 
                                technically and economically 
                                feasible alternative available 
                                to the applicant for the use of 
                                methyl bromide for which the 
                                application was submitted; and
                                  (II) provides such evidence 
                                to the applicant in writing.
                          (iii) Alternatives.--The 
                        Administrator, when evaluating the 
                        technical and economic feasibility of 
                        any alternative pursuant to clause 
                        (ii), shall consider--
                                  (I) cost and commercial 
                                availability of the alternative 
                                to the applicant;
                                  (II) demonstrated 
                                effectiveness of the 
                                alternative for the applicant's 
                                specific intended use;
                                  (III) demonstrated 
                                effectiveness of the 
                                alternative in the geographic 
                                region of the applicant's 
                                intended use; and
                                  (IV) State or local 
                                regulations that may restrict 
                                use of the alternative for the 
                                applicant's intended use.
                  (B) Emergency events.--
                          (i) In general.--For each calendar 
                        year, beginning with 2013, the 
                        Administrator, pursuant to an 
                        application submitted by any person, 
                        shall allow the production, 
                        importation, and consumption in the 
                        United States of methyl bromide--
                                  (I) for any use described in 
                                subparagraph (A)(i)(I) in 
                                response to an emergency event; 
                                and
                                  (II) in an amount necessary 
                                for such use.
                          (ii) Limits on use per emergency 
                        event.--The amount of methyl bromide 
                        allowed pursuant to clause (i) for use 
                        per emergency event at a specific 
                        location shall not exceed 20 metric 
                        tons.
                          (iii) Limit on aggregate amount.--The 
                        aggregate amount of methyl bromide 
                        allowed pursuant to clause (i) for use 
                        in the United States in a calendar year 
                        shall not exceed the total amount 
                        authorized by the parties to the 
                        Montreal Protocol pursuant to the 
                        Montreal Protocol process for critical 
                        uses in the United States in calendar 
                        year 2011.
                  (C) International obligations.--The 
                Administrator shall take such actions as may be 
                necessary to carry out this paragraph in 
                accordance with the Montreal Protocol.
                  (D) Research.--For each calendar year, 
                beginning with 2013, the Administrator shall 
                take all appropriate actions within the 
                authority of the Environmental Protection 
                Agency to ensure that sufficient quantities of 
                methyl bromide are available for research on 
                methyl bromide alternatives for the 
                agricultural sector.
                  (E) Adjustments to critical use 
                nominations.--The Administrator shall review 
                and, as appropriate, take action to adjust any 
                critical use nomination that has been submitted 
                to the Parties to the Montreal Protocol (for 
                production, importation, or consumption of 
                methyl bromide in the United States) if--
                          (i) a methyl bromide alternative is 
                        removed from the United States market; 
                        and
                          (ii) on the basis of the availability 
                        of such alternative, the Administrator 
                        denied, or reduced the amount requested 
                        under, any application for production, 
                        importation, or consumption of methyl 
                        bromide for the year covered by such 
                        nomination.
                  (F) Definitions.--In this paragraph:
                          (i) The term ``approved critical 
                        use'' means a use that--
                                  (I) as of January 1, 2005, 
                                was an approved critical use in 
                                appendix L to subpart A of part 
                                82 of title 40, Code of Federal 
                                Regulations; or
                                  (II) during the period 
                                following such date and ending 
                                on the date of enactment of 
                                this clause, was added as an 
                                approved critical use in such 
                                appendix.
                          (ii) The term ``critical use'' means 
                        a circumstance in which--
                                  (I) there are no technically 
                                and economically feasible 
                                alternatives or substitutes for 
                                methyl bromide available that 
                                are acceptable from the 
                                standpoint of environment and 
                                health and are suitable to the 
                                crops and circumstances 
                                involved; and
                                  (II) the lack of availability 
                                of methyl bromide for a 
                                particular use would result in 
                                significant market disruption.
                          (iii) The term ``emergency event'' 
                        means a situation--
                                  (I) that occurs at a farm, 
                                nursery, food processing 
                                facility, or commodities 
                                storage facility;
                                  (II) for which there is no 
                                critical use exemption in 
                                effect for such site, or for 
                                which there are not sufficient 
                                quantities of methyl bromide 
                                available under an existing 
                                critical use exemption for such 
                                site, as described in 
                                subparagraph (A); and
                                  (III) that requires the use 
                                of methyl bromide to control a 
                                pest or disease because there 
                                is no technically and 
                                economically feasible 
                                alternative to methyl bromide 
                                available for such use.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    The stated purpose of this bill is to ensure that American 
growers have access to methyl bromide where it is necessary for 
certain critical uses. However, the provisions of this bill 
will not achieve that purpose. The bill includes several 
counterproductive changes to the existing process for obtaining 
critical use exemptions that will undermine efforts to ensure 
that growers have methyl bromide for truly critical uses and 
reverse progress that has been made on phasing out the use of 
methyl bromide.

               I. Current Critical Use Exemption Process

    Methyl bromide is an odorless, colorless, toxic gas that 
was once used as a soil fumigant and structural fumigant to 
control pests across a range of agricultural sectors. It is 
controlled as a Class I ozone-depleting substance under the 
Clean Air Act. In 1997, the Parties to the Montreal Protocol 
agreed to phase-out methyl bromide in industrialized countries 
by 2005 and in developing countries by 2015. In 2000, the 
Environmental Protection Agency (EPA) issued regulations to 
phase-out the production and consumption of methyl bromide on 
January 1, 2005, apart from allowable exemptions, such as the 
critical use exemption (CUE) and the quarantine and pre-
shipment exemption.
    Article 2H of the Montreal Protocol established the 
critical use exemption and EPA established a critical use 
exemption process in 2004.\1\ Under EPA rules, a ``critical 
use'' is defined as:

          a circumstance in which the following two conditions 
        are satisfied: (1) There are no technically and 
        economically feasible alternatives or substitutes for 
        methyl bromide available that are acceptable from the 
        standpoint of environment and health and are suitable 
        to the crops and circumstances involved, and (2) The 
        lack of availability of methyl bromide for a particular 
        use would result in significant market disruption.\2\
---------------------------------------------------------------------------
    \1\U.S. Environmental Protection Agency, Protection of 
Stratospheric Ozone: Process for Exempting Critical Uses from the 
Phaseout of Methyl Bromide, 69 Fed. Reg. 76982 (Dec. 23, 2004) (final 
rule).
    \2\40 CFR 82.3.

    Under this process, each year EPA solicits critical use 
exemption applications and ``reviews the data submitted by 
applicants, as well as data from governmental and academic 
sources'' to determine whether each application meets the 
critical use exemption criteria.\3\ EPA also analyzes ``dosage 
and emissions minimization techniques and applicants' research 
or transition plans.''\4\ EPA consults with the U.S. Department 
of Agriculture (USDA) and other federal agencies that have 
regulatory authority related to methyl bromide. Based on this 
assessment and these consultations, the U.S. government 
develops its critical use nomination (CUN) for the control 
period two years in the future and submits its nomination to 
the Ozone Secretariat.
---------------------------------------------------------------------------
    \3\U.S. Environmental Protection Agency, Protection of 
Stratospheric Ozone: The 2012 Critical Use Exemption from the Phaseout 
of Methyl Bromide, 77 Fed. Reg. 29218 (May 17, 2012) (final rule).
    \4\Id.
---------------------------------------------------------------------------
    Two advisory bodies to the Parties to the Montreal 
Protocol--the Methyl Bromide Technical Options Committee 
(MBTOC) and the Technology and Economic Assessment Panel 
(TEAP)--review each country's CUNs and make recommendations to 
the Parties. The Parties then make decisions to authorize 
critical use exemptions to specify the amount of production and 
consumption of methyl bromide for each country. EPA 
subsequently allocates the U.S. critical use allowances among 
the applicants through a rulemaking.
    Consistent with the goals of the Montreal Protocol, the 
quantities of critical use exemptions for the United States 
have declined considerably since 2005. For 2005, the U.S. 
received critical use exemptions for 9,552 metric tons of 
methyl bromide.\5\ For 2013, the U.S. received critical use 
exemptions for 562 metric tons of methyl bromide.\6\ The U.S. 
stockpiles of pre-phase-out methyl bromide also have declined 
during this period--from 12,994 metric tons in 2004 to 1,249 
metric tons by the end of 2011.\7\
---------------------------------------------------------------------------
    \5\Technology and Economic Assessment Panel, Progress Report Volume 
One (May 2012) (online at http://ozone.unep.org/Assessment_Panels/TEAP/
Reports/TEAP_Reports/TEAP_Progress_Report_May_2011.pdf).
    \6\Montreal Protocol, Decision XXIII/4.
    \7\Technology and Economic Assessment Panel, Progress Report Volume 
One (May 2012) (online at http://ozone.unep.org/Assessment_Panels/TEAP/
Reports/TEAP_Reports/TEAP_Progress_Report_May_2011.pdf).
---------------------------------------------------------------------------
    Despite this decline, the United States is by far the 
largest recipient of critical use exemptions. In 2013, only 
three other developed countries received CUEs: Australia 
received 32 metric tons, Canada received 13 metric tons, and 
Japan received 3 metric tons.\8\ With 562 metric tons, the 
United States received 92% of all CUEs.
---------------------------------------------------------------------------
    \8\Montreal Protocol, Decision XXIII/4.
---------------------------------------------------------------------------

  II. Bill Summary: H.R. 6194, U.S. Agricultural Sector Relief Act of 
                                  2012

    The bill would significantly alter the current CUE process, 
with results that are likely to be counterproductive.
    Section 2 amends section 604(h) of the Clean Air Act 
relating to the phase-out of methyl bromide. It requires the 
EPA Administrator, for each year beginning in 2013, to seek a 
critical use exemption under the Montreal Protocol in order to 
allow the production, importation, and consumption of methyl 
bromide for any approved critical use in the amount necessary 
for that use. The term ``approved critical use'' is defined as 
the regulatory list of approved critical uses in effect on 
January 1, 2005, plus the approved critical uses added to the 
regulatory list since January 1, 2005. The Administrator is 
prohibited from denying or reducing the amount requested in any 
application for a critical use exemption unless the 
Administrator has ``substantial evidence'' to establish that 
there is a technically and economically feasible alternative 
available to the applicant for the use of methyl bromide for 
which the application was submitted.
    This provision would shift the burden on EPA to prove that 
a requested critical use exemption is unwarranted. Currently, 
an applicant for a CUE is required to provide data 
demonstrating that such an exemption is warranted. By 
eliminating rigorous EPA analysis of a CUE application, the 
provision may reduce the ability of EPA and the U.S. government 
to support its critical use nomination at the annual Meeting of 
the Parties to the Montreal Protocol.
    Moreover, the provision reinstates the list of approved 
critical uses in effect on January 1, 2005, and makes that 
outdated list permanent in law. An amendment offered by Rep. 
Whitfield during the July 19, 2012, Subcommittee markup 
establishes that the list of approved critical uses only 
reflects additions to the list since that date, not 
subtractions from the list. Under the bill, there can be no 
future additions to or subtractions from the list. As a result, 
sectors that may have a legitimate need for methyl bromide 
could be prevented from obtaining a CUE under the bill.
    In addition, sectors that have completely phased-out the 
use of methyl bromide during the last seven years would be 
permitted to use methyl bromide again under this provision. For 
example, golf courses would once again be allowed to seek 
critical use exemptions for methyl bromide. The bill would 
reinstate critical uses for sectors that have not even 
submitted requests for methyl bromide in years. Michigan 
growers have not applied for a critical use exemption since 
2007. Tobacco growers sought a critical use exemption in 2006, 
but did not seek methyl bromide for any of the years between 
2007 and 2014. By allowing sectors that have successfully 
transitioned to alternatives to revert to methyl bromide, this 
provision goes well beyond the stated purpose of the bill.
    At the full Committee markup, Rep. Waxman offered an 
amendment to fix the problem of freezing an outdated list of 
critical uses in law. Under his amendment, the bill's list of 
approved critical uses would be aligned with the latest 
regulatory list. If that list is changed to add new uses or to 
take off sectors that no longer need methyl bromide, those 
changes would be reflected in the bill's definition. That 
approach would provide the regulatory flexibility to take into 
account changing circumstances and new information. It also 
would avoid the result of re-introducing methyl bromide to 
sectors that have successfully transitioned to alternatives 
that do not deplete the ozone layer. Rep. Waxman's amendment 
was defeated by voice vote.
    Section 2 of the bill also requires EPA, for each year 
beginning in 2013, to allow the production, importation, and 
consumption of methyl bromide for any use in response to an 
``emergency event'' in an amount necessary for such use. An 
``emergency event'' is broadly defined as a situation (1) where 
there are not sufficient quantities of methyl bromide available 
and (2) that requires the use to control a pest or disease 
because there is no technically and economically feasible 
alternative available. The provision does not specify who 
determines if sufficient quantities of methyl bromide are 
available. The amount of methyl bromide allowed per emergency 
event at a specific location is limited to 20 metric tons. The 
aggregate amount of methyl bromide allowed for emergency events 
in the United States in a year is limited to the amount of 
critical use exemptions authorized by the parties to the 
Montreal Protocol for the U.S. in 2011, which was 2,055 metric 
tons. This is about four times the amount of methyl bromide for 
which the United States received CUEs for 2013.
    This ``emergency event'' provision is so broadly drafted 
that it could create a major loophole in the critical use 
exemption process. Currently, a Montreal Protocol decision 
allows for the use of methyl bromide without a CUE in genuine 
emergencies, but this emergency exemption has been invoked only 
twice (once by Australia and once by Canada). Under the bill, 
any time an applicant does not obtain a CUE or uses up all of 
its allotted methyl bromide under a CUE, it could potentially 
trigger this ``emergency event'' procedure to obtain up to 20 
metric tons of methyl bromide. The language of the provision 
does not rule out routine reliance on this ``emergency event'' 
procedure by current or past users of methyl bromide. According 
to testimony received at the July 18, 2012, legislative 
hearing, some growers would use the bill's ``emergency event'' 
procedure to obtain methyl bromide for this type of planned, 
routine application. For example, a witness testifying on 
behalf of the Society of American Florists argued that growers 
should be allowed ``to develop an `emergency cleanup process' 
that will allow us to go into our fields every few years and 
clean up the pests and diseases'' with methyl bromide.\9\
---------------------------------------------------------------------------
    \9\Michelle Castellano Keeler, Vice President of Mellano & Company, 
Committee on Energy and Commerce, Subcommittee on Energy and Power, 
Legislative Hearing on H.R.__, the U.S. Agricultural Sector Relief Act 
of 2012, and H.R.__, the Asthma Inhalers Relief Act of 2012, 112th 
Cong. (Jul. 18, 2012).
---------------------------------------------------------------------------
    In addition, pursuant to an amendment offered by Rep. 
Whitfield during the July 19, 2012, Subcommittee markup, 
section 2 requires EPA to review and, as appropriate, take 
action to adjust any critical use nomination that has been 
submitted to the Parties of the Montreal Protocol if (1) a 
methyl bromide alternative is removed from the U.S. market and 
(2) on the basis of the availability of such alternative, EPA 
denied, or reduced the amount requested under, any application 
for a critical use exemption for the year covered by the 
nomination. This provision creates the potential for litigation 
regarding the content of the U.S. nomination to the Montreal 
Protocol. Such litigation could prevent the U.S. government 
from submitting timely critical use nominations. Requiring EPA 
to adjust previously-submitted critical use nominations, 
potentially after the deadline for submission of critical use 
nominations, could also delay or complicate the review of U.S. 
critical use nominations by the MBTOC and Parties of the 
Montreal Protocol. This could have a detrimental effect on the 
ability of growers who have a legitimate need for methyl 
bromide to obtain CUEs.
    For the reasons stated above, we dissent from the views 
contained in the Committee's report.
                                   Henry A. Waxman.
                                   Bobby L. Rush.