[Federal Register Volume 80, Number 113 (Friday, June 12, 2015)]
[Proposed Rules]
[Pages 33460-33467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14473]


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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 (EPA).

ACTION: Proposed rule.

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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 received on or before July 13, 2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2013-0369, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or withdrawn. The 
EPA may publish any comment received to its public docket. Do not 
submit electronically any information you consider to be Confidential 
Business Information (CBI) or other information

[[Page 33461]]

whose disclosure is restricted by statute. If you need to include CBI 
as part of your comment, please visit http://www.epa.gov/dockets/comments.html for instructions. Multimedia submissions (audio, video, 
etc.) must be accompanied by a written comment. The written comment is 
considered the official comment and should include discussion of all 
points you wish to make.
    For additional submission methods, the full EPA public comment 
policy, and general guidance on making effective comments, please visit 
http://www.epa.gov/dockets/comments.html.

FOR FURTHER INFORMATION CONTACT: Jeremy Arling, Stratospheric 
Protection Division, Office of Atmospheric Programs, Mail Code 6205T, 
1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number 
(202) 343-9055; email address [email protected]. You may also visit 
the methyl bromide section of the Ozone Depletion Web site of EPA's 
Stratospheric Protection Division at www.epa.gov/ozone/mbr for further 
information about the methyl bromide critical use exemption, other 
Stratospheric Ozone Protection regulations, the science of ozone layer 
depletion, and related topics.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

    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.

II. General Information

A. Does this action apply to me?

    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 regarding the applicability of this action to a particular 
entity, consult the person listed in the preceding section.

III. What is methyl bromide?

    Methyl bromide is an odorless, colorless, toxic gas which is used 
as a broad-spectrum 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 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.

IV. 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 ozone-depleting 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 
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

[[Page 33462]]

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).

V. What is the legal authority for exempting the production and import 
of methyl bromide for critical uses permitted 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.
    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 honoring commitments made by the 
United States in the Montreal Protocol context.
    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.

VI. What is the critical use exemption process?

A. Background of the Process

    Article 2H of the Montreal Protocol established the critical use 
exemption provision. At the Ninth Meeting of the Parties in 1997, the 
Parties established the criteria for an exemption in Decision IX/6. In 
that Decision, the Parties agreed that ``a use of methyl bromide should 
qualify as `critical' only if the nominating Party determines that: (i) 
The specific use is critical because the lack of availability of methyl 
bromide for that use would result in a significant market disruption; 
and (ii) There are no technically and economically feasible 
alternatives or substitutes available to the user that are acceptable 
from the standpoint of environment and health and are suitable to the 
crops and circumstances of the nomination.'' EPA promulgated these 
criteria in the definition of ``critical use'' at 40 CFR 82.3.
    In addition, 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 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.
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    \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.''
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    On January 22, 2014, the United States submitted the twelfth 
Nomination for a Critical Use Exemption for Methyl Bromide for the 
United States of

[[Page 33463]]

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 approved in this rule reflect the analyses contained in those 
documents.

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 (78 FR 43797, July 22, 2013) 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. . . .'' 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 uses 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.
    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 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. Following this technical review, 
EPA consulted with the USDA and the Department of State. EPA 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 refers readers to the Federal Register Notice ``Request 
for Methyl Bromide Critical Use Exemption Applications for 2017'' (79 
FR 38887; July 9, 2014) for a summary of information on how the agency 
evaluated specific uses and available alternatives when considering 
applications for critical uses for 2016. EPA requests comment on the 
technical assessments of the applications in the sector summary 
documents found in the docket to this rule 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 in 
preparing future nominations.
    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 notes that it will not finalize a rule containing uses beyond those 
agreed to by the Parties for 2016.

D. Proposed Critical Use Amounts

    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,

[[Page 33464]]

EPA is proposing to allocate allowances to exempt 140,531 kg of new 
production and import of methyl bromide for critical uses in 2016, 
making reductions for available stocks and carryover. EPA invites 
comment on the proposal to make reductions for available stocks and 
carryover and on the analyses below.
    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, 2014, show existing stocks to be 
158,121 kg (158 MT). This shows that 198 MT of pre-2005 stocks were 
used in 2014. These data do not reflect drawdown of stocks 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 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 
(78 FR 43802).
    EPA believes that 5% of existing stocks will be available in 2016 
for the two proposed critical uses. As a result of the changes to the 
FIFRA labeling, methyl bromide sold or distributed in 2015 can only be 
used for approved critical uses or for quarantine and preshipment 
purposes. Except for sectors with quarantine and preshipment uses, 
California strawberries is the only pre-plant sector that will be able 
to use stocks in 2015 or 2016. EPA does not anticipate stocks to be 
used for quarantine and preshipment uses as there are no production 
allowances required to manufacture that material and it tends to be 
less expensive than stocks. Distributors will therefore likely make 
stocks available to California strawberry growers in 2015 and 2016.
    While EPA is not proposing to estimate the amount that will be used 
in 2015, EPA believes that at least 5% stocks will be available in 
2016. As discussed in the carryover section below, demand by California 
strawberry growers in 2014 for critical use methyl bromide was lower 
than anticipated. For the first time since 2009, not all of the 
critical use material produced or imported for a control period was 
sold. Decreased demand for critical use methyl bromide in 2014 means 
that unsold material already produced will be available in 2015 in 
addition to stocks.
    Furthermore, EPA now knows the national distribution and 
composition of stocks (e.g. pure or mixed with chloropicrin) due to a 
recent information collection request under section 114 of the Clean 
Air Act. EPA believes there is geographically accessible pure methyl 
bromide for ham producers in the Southeastern U.S. as well as pre-plant 
methyl bromide for California strawberry producers.
    For these reasons, EPA is proposing to find 5% 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 amount of unsold 
2014 critical use methyl bromide, the removal of the critical stock 
allowance provisions that limited the amount of stocks that can be sold 
for critical uses, the quantity and geographical location of approved 
uses, and the quantity and location of stocks. Existing stocks, as of 
December 31, 2014, were equal to 158,121 kg. Therefore, EPA is 
proposing to reduce the amount of new production for 2016 by 7,906 kg.
    Carryover Material: EPA regulations prohibit methyl bromide 
produced or imported after January 1, 2005, under the critical use 
exemption, from being added to the 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 next year. EPA uses these reports to calculate any excess methyl 
bromide left over from that year's CUE and, using the framework 
established in the 2005 CUE Rule, reduces the following year's total 
allocation by that amount. Carryover had been reported to the Agency 
every year from 2005 to 2009. 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.
    In 2015, companies reported that 442,200 kg of methyl bromide was 
produced or imported for U.S. critical uses in 2014. EPA also received 
reports that 355,857 kg of critical use methyl bromide was sold to end-
users in 2014. EPA calculates that the carryover amount at the end of 
2014 was 86,343 kg, which is the difference between the reported amount 
of critical use methyl bromide produced or imported in 2014 and the 
reported amount of sales of that material to end users in 2014. EPA's 
calculation of carryover is consistent with the method used in previous 
CUE rules, and with the format in Decision XVI/6 for calculating column 
L of the U.S. Accounting Framework. All U.S. Accounting Frameworks for 
critical use methyl bromide are available in the public docket for this 
rulemaking. EPA is therefore proposing to reduce the total level of new 
production and import for critical uses by 86,343 kg to reflect the 
amount of carryover material available at the end of 2014, in addition 
to the 7,906 kg reduction for available stocks discussed above.
    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

[[Page 33465]]

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 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 
140,531 kg to Great Lakes Chemical Corporation, Albemarle Corporation, 
ICL-IP America, and TriCal, Inc 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 permitting critical uses. These Decisions call on Parties to 
endeavor to allocate critical use methyl bromide on a sector basis.
    EPA is proposing to assign the 7,906 kg reduction for available 
stocks and 86,343 kg reduction for carryover in proportion to the 
amounts indicated in Table A of the annex to Decision XXVI/6. In other 
words, both the pre-plant and the post-harvest allocation would be 
reduced by 40%. Specifically, the pre-plant allocation for California 
strawberry production would decline from 231,540 kg to 138,592 kg and 
the post-harvest allocation for dry cured ham would decline from 3,240 
kg to 1,939 kg. Reported data show that the critical use methyl bromide 
carried over from 2014 and the existing stocks include both pre-plant 
and post-harvest material. EPA invites comment on reducing the 
allocation in this proportional manner or whether an alternate method 
is preferable.
    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. Because EPA is proposing only one use in the pre-plant 
sector and one use in the post-harvest sector for 2016, this proposed 
rule follows the breakout of specific uses in Decision XXVI/6.
    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 criteria in Decision 
IX/6, paragraph 1 and the conditions set forth in Decision Ex. I/4 (to 
the extent applicable) to exempted critical uses for the 2016 control 
period. The following section provides references to sections of this 
preamble and other documents where EPA considers the criteria of those 
two Decisions.
    Decision IX/6, paragraph 1 contains the critical use criteria, 
which are summarized in Section III.A of the preamble. The nomination 
documents detail how each proposed critical use meets the criteria in 
Decision IX/6, paragraph 1 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; and the development of 
research and transition plans. The nomination documents also address 
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.
    A discussion of the agency's application of the critical use 
criteria to the proposed critical uses for 2016 appears in Sections 
III.A., III.C., and III.D. 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 agency has previously provided its interpretation of the 
criterion in Decision IX/6, paragraph (1)(a)(i) regarding the presence 
of significant market disruption in the absence of an exemption. EPA 
refers readers to the preamble to the 2006 CUE rule (71 FR 5989, 
February 6, 2006) as well as to the memo in the docket titled 
``Development of 2003 Nomination for a Critical Use Exemption for 
Methyl Bromide for the United States of America'' for further 
elaboration. As explained in those documents, EPA's interpretation of 
this term has several dimensions, including looking at potential 
effects on both demand and supply for a commodity, evaluating potential 
losses at both an individual level and at an aggregate level, and 
evaluating potential losses in both relative and absolute terms.
    The United States has also considered the adoption of alternatives 
and research into methyl bromide alternatives in the development of the 
National Management Strategy submitted to the Ozone Secretariat in 
December 2005 and 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 technologies, deep shank injection and/
or other techniques that promote environmental protection, whenever 
technically and economically feasible. EPA developed a comprehensive 
strategy for risk mitigation through the 2009 Reregistration 
Eligibility Decision (RED) \2\ for methyl bromide, available in the 
docket to this rulemaking, which is implemented through restrictions on 
how methyl bromide products can be used. This approach means that 
methyl bromide labels require that treated sites be tarped. 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.
---------------------------------------------------------------------------

    \2\ Additional information on risk mitigation measures for soil 
fumigants is available at http://epa.gov/pesticides/reregistration/soil_fumigants/.
---------------------------------------------------------------------------

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

[[Page 33466]]

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: 
http://www.ars.usda.gov/research/programs/programs.htm?NP_CODE=303, 
http://www.ars.usda.gov/research/programs/programs.htm?NP_CODE=304, and 
http://www.csrees.usda.gov.
    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.

VII. 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)

    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. This 
action would allocate allowances for the production and import of 
methyl bromide to private entities. This rule also would limit the 
proposed critical uses to geographical areas that reflect the scope of 
the trade associations that applied for a critical use. This rule does 
not impose any duties or responsibilities on State governments or 
allocate any rights to produce or use methyl bromide to a State 
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 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 population, including any minority or low-income 
population. Any ozone depletion that results from this action will 
result in impacts that are, in general, equally distributed across 
geographical regions in the United States. The impacts do not fall 
disproportionately on minority or low-income populations but instead 
vary with a wide variety of factors. 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.


[[Page 33467]]


    Dated: June 3, 2015.
Gina McCarthy,
Administrator.

    For the reasons set forth in the preamble, EPA proposes to amend 40 
CFR part 82 as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

0
1. The authority citation for part 82 continues to read as follows:

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

0
2. Amend Sec.  82.8 by revising the table in paragraph (c)(1) to read 
as follows:


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

* * * * *
    (c) * * *
    (1) * * *

------------------------------------------------------------------------
                                 2016 Critical use    2016 Critical use
                                allowances for  pre-    allowances for
            Company                 plant uses *     post-harvest uses *
                                    (kilograms)           (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp. A                 84,222                1,179
 Chemtura Company.............
Albemarle Corp................               34,634                  485
ICL-IP America................               19,140                  268
TriCal, Inc...................                  596                    8
                               -----------------------------------------
    Total.....................              138,592                1,939
------------------------------------------------------------------------
* 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.

* * * * *
0
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    Limiting Critical Conditions that
                                      Use.                                   exist, or that the approved
                                                                             critical user reasonably expects
                                                                             could arise without methyl bromide
                                                                             fumigation.
----------------------------------------------------------------------------------------------------------------
                                                 PRE-PLANT USES
----------------------------------------------------------------------------------------------------------------
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    Red legged ham beetle infestation.
                                      Association and the American          Cheese/ham skipper infestation.
                                      Association of Meat Processors,       Dermestid beetle infestation.
                                      Nahunta Pork Center (North            Ham mite infestation.
                                      Carolina), and Gwaltney of
                                      Smithfield Inc.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2015-14473 Filed 6-11-15; 8:45 am]
 BILLING CODE 6560-50-P