[Federal Register Volume 80, Number 199 (Thursday, October 15, 2015)]
[Rules and Regulations]
[Pages 61985-61993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26301]



40 CFR Part 82

[EPA-HQ-OAR-2013-0369; FRL-9935-69-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: Final rule.


SUMMARY: The Environmental Protection Agency (EPA) is authorizing uses 
that qualify for the critical use exemption and the amount of methyl 
bromide that may be produced or imported for those uses for the 2016 
control period. EPA is issuing 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: This rule is effective on January 1, 2016.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2013-0369. All documents in the docket are listed on the 
www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and is publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the Air 
and Radiation Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution 
Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the Air and Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: 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.


I. Executive Summary

    This rule concerns Clean Air Act (CAA) restrictions on the 
consumption, production, and use of methyl bromide (a Class I, Group VI 
controlled substance) for critical uses. 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 authorizing 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 those critical uses for 2016.

II. General Information

A. Does this action apply to me?

    Entities and categories of entities potentially regulated by this 
action include producers, importers, and exporters of methyl bromide; 
applicators and distributors of methyl bromide; and users of methyl 
bromide that applied for the 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 action. To determine whether 
your facility, company, business, or organization could be regulated by 
this action, you should carefully examine the regulations promulgated 
at 40 CFR part 82, subpart A. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding section.

[[Page 61986]]

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.
    Methyl bromide is also regulated by EPA under the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA) and other statutes 
and regulatory authorities, 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 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 action 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 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 
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 

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, new production, or through imports to meet the needs of 
approved critical uses. EPA has 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 action. In this rule, EPA is honoring 

[[Page 61987]]

made by the United States in the Montreal Protocol context.
    Under authority of section 604(d)(6) of the CAA, EPA is now listing 
approved critical uses, as well as authorizing the amount of methyl 
bromide that may be produced or imported to satisfy those uses during 
2016. The 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 proposed to exempt.

    \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.''

    On January 22, 2014, the United States submitted the twelfth 
Nomination for a Critical Use Exemption for Methyl Bromide for the 
United States of America to the Ozone Secretariat of UNEP. This 
nomination contained the request for 2016 critical uses. In March 2014, 
MBTOC sent questions to the United States concerning technical and 
economic issues in the 2016 nomination. The United States transmitted 
responses to MBTOC in March 2014. In May 2014, the MBTOC provided their 
interim recommendations on the U.S. nomination in the May TEAP Interim 
Report. These documents, together with reports by the advisory bodies 
noted above, are in the public docket for this rulemaking. The critical 
uses and amounts approved in this rule reflect the analyses contained 
in those documents.

B. How does this rule relate to previous critical use exemption rules?

    The December 23, 2004, Framework Rule established the framework for 
the critical use exemption program in the United States, including 
definitions, prohibitions, trading provisions, and recordkeeping and 
reporting obligations. The preamble to the Framework Rule included 
EPA's determinations on key issues for the critical use exemption 
    Since publishing the Framework Rule, EPA has annually issued 
regulations to indicate which uses meet the criteria for the exemption 
and to exempt specific quantities of production and import of methyl 
bromide for a particular year.
    This 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. 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. . . .'' Cured 
pork and strawberry field production are the uses that are set forth in 
table A of the annex to Decision XXVI/6 for the United States for 2016.
    This rule modifies the table in 40 CFR part 82, subpart A, appendix 
L to reflect the agreed critical use categories. EPA is amending 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. For reasons discussed below, EPA is removing the time 
limitation in appendix L for the approval of dry-cured pork products as 
a critical use to

[[Page 61988]]

allow for the continued use of carryover post-harvest methyl bromide 
after 2016.
    Specifically, this rule removes the food processing uses that were 
listed in the joint 2014/2015 CUE rule 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.
    This rule also removes 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 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 requested comment on the technical assessments of the 
applications in the sector summaries found in the docket and the 
determination that these users did not meet the critical use criteria. 
EPA also requested any new or additional information that the Agency 
may consider in preparing future nominations. EPA also sought comment 
on the technical analyses contained in the U.S. nomination and 
information regarding any changes to the registration (including 
cancellations or registrations), use, or efficacy of alternatives that 
occurred after the nomination was submitted.
    As EPA noted in the proposed rule, 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 received one comment on the proposed rule. This commenter 
highlighted the chemical and non-chemical alternatives in use in the 
European Union, including other fumigants, integrated crop management 
systems, heat treatment, gamma irradiation, cold storage, resistant 
varieties and cultivars, crop rotation, cover crops, soil solarization, 
and anaerobic disinfestation. EPA considered these alternatives when 
developing the nomination for critical uses for 2016, but concluded 
that additional research on alternatives is still necessary for dry 
cured ham production, and that additional time to transition to 
chloropicrin is needed for California strawberries.
    The same commenter urged the Agency to announce an end date for all 
methyl bromide exemptions and, in light of the recent human health 
incident in the U.S. Virgin Islands, to end the use of all methyl 
bromide in the United States. Neither the Protocol nor the Clean Air 
Act establishes a specific end date for the critical use exemption. 
However, as noted in Decision Ex. I/4, the Parties intended for the 
critical use exemption to be a limited, temporary derogation from that 
phaseout. Progress in developing alternatives in key areas of 
historical methyl bromide use has been significant and has allowed many 
sectors to successfully transition from methyl bromide over the last 
decade. Specifically, the number of sectors nominated has declined from 
seventeen for 2006 to one for 2017.
    With respect to the commenter's request that EPA end all use of 
methyl bromide in the U.S., we note that production for quarantine and 
preshipment is excluded from the phaseout under the Montreal Protocol 
and that section 604(d)(5) of the Clean Air Act directs EPA to exempt 
production for this purpose. EPA continues to support this important 
exemption to prevent the introduction and spread of quarantine pests 
while encouraging research into alternatives that meet the rigorous 
standards for quarantine and preshipment applications.

D. Critical Use Amounts

    Table A of the annex to Decision XXVI/6 lists critical uses and 
amounts agreed 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 
    EPA has determined the level of new production and import according 
to the Framework Rule, as modified by the 2013 Rule. Under this 
approach, the amount of new production for each control period equals 
the total amount permitted by the Parties to the Montreal Protocol in 
their Decisions minus any reductions for available stocks, carryover, 
and the uptake of alternatives. These terms (available stocks, 
carryover, and the uptake of alternatives) are discussed in detail 
below. Applying this approach, EPA is allocating 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. 
This is the same amount EPA proposed to allocate.
    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 considered 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. This shows that 198,440 kg of pre-2005 stocks were sold in 
    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

[[Page 61989]]

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 
    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 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, see the 2013 CUE Rule (78 FR 43802).
    EPA believes that 5% of existing stocks will be available in 2016 
for the two 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 has not estimated the amount of stocks that will be used 
in 2015, EPA believes that at least 5% of stocks will be available in 
2016. As discussed in the section on carryover 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. After reviewing results of the information collection request, 
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 finds that 5% of the existing inventory is 
available for use in 2016. Existing stocks, as of December 31, 2014, 
were equal to 158,121 kg. Therefore, EPA is reducing the amount of new 
production for 2016 by 7,906 kg, as proposed.
    EPA specifically invited comment on whether between 0% and 5% of 
existing inventory will be available to critical users in 2016. EPA did 
not receive any comments on that specific issue but did receive a 
comment that it is unclear whether the information received by EPA is 
an accurate reflection of the existing and available stocks of methyl 
bromide in the United States. The commenter encouraged improved 
information gathering to better ensure that these stocks are being used 
in compliance with the FIFRA labeling and the critical use exemption.
    EPA has undertaken two information gathering requests in 2015 under 
section 114 of the CAA. The first request was discussed in the proposed 
rule and sought information about the composition (i.e. pure vs mixed 
with chloropicrin), quantity, and location of stocks. The new 
information provided to the Agency in response to this request has 
enhanced EPA's understanding of existing and available stocks of methyl 
bromide in the United States. EPA's second request for information 
under section 114 of the Clean Air Act was in part a response to the 
misuse of methyl bromide in a residential space in the U.S. Virgin 
Islands and sought additional sales information from all known methyl 
bromide distributors. Specifically, EPA sought the names of all 
distributors and third party applicators of CUE, QPS, and pre-2005 
stocks in 2014. EPA is currently reviewing responses to this request.
    As a further response, under FIFRA, EPA is also working to 
implement changes to methyl bromide commodity labels in order to 
clarify uses and provide additional protections for workers and 
bystanders. EPA is also looking at how additional reporting could help 
ensure compliance with label requirements through EPA's Registration 
Review program, which evaluates pesticides on a regular basis. 
Information on the review of methyl bromide, along with a schedule of 
when the next public comment periods are anticipated, can be found on 
regulations.gov at docket number EPA-HQ-OPP-2013-0269.
    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. Companies also 
reported that 355,857 kg of critical use methyl bromide was sold to 
end-users in 2014. EPA calculates that the carryover 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 reducing 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.
    EPA has considered the possibility that there might be methyl 
bromide produced in 2015 and 2016 carried over into subsequent years. 
Any pre-plant critical use methyl bromide carried over from the 2015 
control period could not be subtracted in 2017, as would usually be 
done. That is because critical use material produced for a pre-plant 

[[Page 61990]]

must be used on a pre-plant use and the United States has not nominated 
a pre-plant use for 2017. Such carryover could be used in 2016 while 
California strawberry production is a critical use. Any pre-plant 
methyl bromide produced under the authority of this rule in 2016 that 
is not used in 2016 would have to be destroyed. EPA has discussed these 
matters with methyl bromide distributors, producers, and importers that 
reported to EPA that they have carryover material to make them aware of 
the need to use all pre-plant critical use methyl bromide by the end of 
2016. California strawberry growers represent a large end-use with 
capacity to use all remaining pre-plant critical use material by the 
end of 2016.
    EPA believes that not all 2014 carryover produced for post-harvest 
uses may be used by the end of 2016 given the low volume used by the 
ham production sector. As discussed above, EPA has accounted for 2014 
post-harvest carryover in this rule and has reduced the production of 
new material. EPA is also working to connect dry cured ham producers 
with distributors that hold post-harvest carryover to help ensure that 
it will be used. However, EPA believes that ham producers should be 
allowed to continue to use carryover post-harvest critical use methyl 
bromide should any remain after 2016. EPA believes that hams may not 
have a technically or economically feasible alternative by the end of 
2016 and thus will likely continue to meet the critical use criteria 
beyond 2016. Therefore, to provide certainty to the ham producers and 
to continue an orderly reduction in methyl bromide produced for 
critical uses, EPA will allow the continued use of post-harvest 
carryover for hams beyond 2016. Accordingly, EPA is not specifying a 
date limitation in appendix L for the approval of dry cured pork 
products as critical uses.
    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 making any other modifications to CUE amounts to account 
for availability of alternatives. Rates of transition to alternatives 
have already been applied for permitted 2016 critical use amounts 
through the nomination and authorization process. EPA 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 issuing 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 assigning 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 are reduced by 40%. 
Specifically, the pre-plant allocation for California strawberry 
production is 138,592 kg and the post-harvest allocation for dry cured 
ham is 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.
    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 there is only one use in the pre-plant sector and 
one use in the post-harvest sector, this 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 requested 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. EPA did not receive any comments in response to this 

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 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 critical uses in this rule appears in Sections III.A., 
III.C., and III.D. of this preamble. The Agency has previously provided 
its interpretation of the criterion in Decision IX/6, paragraph 
(1)(a)(i) regarding the presence of significant market disruption in 
the absence of an exemption. EPA refers readers to the preamble to the 
2006 CUE rule (71 FR 5989, February 6, 2006) as well as to the memo in 
the docket titled ``Development of 2003 Nomination for a Critical Use 
Exemption for Methyl Bromide for the United States of America'' for 
further elaboration. As explained in those documents, EPA's 
interpretation of this term has several dimensions, including looking 
at potential effects on both demand and supply for a commodity, 
evaluating potential losses at both an individual

[[Page 61991]]

level and at an aggregate level, and evaluating potential losses in 
both relative and absolute terms.
    The United States also considered the research and adoption of 
alternatives when developing 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--
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=304, and 
    Users of methyl bromide should continue 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.

G. Technical Correction to Recordkeeping and Reporting Provisions

    EPA is making minor technical changes to section 82.13(y) and (z) 
related to recordkeeping and reporting under the quarantine and 
preshipment exemption. Section 82.13(y) contains a reference to 
paragraph (aa) where it should reference paragraph (y). Similarly, 
section 82.13(z) contains a reference to paragraph (bb) where it should 
reference paragraph (z). This merely corrects a typographical error and 
is not a substantive change to the recordkeeping requirements or the 
quarantine and preshipment exemption program.

VII. Statutory and Executive Order Reviews

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

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

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 allows the use of methyl 
bromide for approved critical uses after the phaseout date of January 
1, 2005, this action confers a benefit to users of methyl bromide. 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 allocates allowances for the production and import of methyl 
bromide to private entities. This rule also limits the 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

[[Page 61992]]

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. 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 

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective January 1, 2016.

List of Subjects in 40 CFR Part 82

    Environmental protection, Chemicals, Exports, Imports, Ozone 

    Dated: October 5, 2015.
Gina McCarthy,
    For the reasons stated in the preamble, 40 CFR part 82 is amended 
as follows:


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

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

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 

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

                                           2016 Critical   2016 Critical
                                          use allowances  use allowances
                 Company                   for pre-plant     for post-
                                              uses *      harvest uses *
                                            (kilograms)     (kilograms)
Great Lakes Chemical Corp. A Chemtura             84,222           1,179
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.

* * * * *

3. Amend Sec.  82.13 by revising paragraphs (y) and (z) to read as 

Sec.  82.13  Recordkeeping and reporting requirements for class I 
controlled substances.

* * * * *
    (y) Every distributor of methyl bromide (class I, Group VI 
controlled substances) who purchases or receives a quantity produced or 
imported solely for quarantine or preshipment applications under the 
exemptions in this subpart must comply with recordkeeping and reporting 
requirements specified in this paragraph (y) of this section.
    (z) Every applicator of class I, Group VI controlled substances who 
purchases or receives a quantity produced or imported solely for 
quarantine and preshipment applications under the exemptions in this 
subpart must comply with recordkeeping and reporting requirements 
specified in this paragraph (z) of this section.
* * * * *

4. Amend subpart A by revising appendix L to read as follows:


               Column A                            Column B                             Column C
Approved Critical Uses................  Approved Critical User,         Limiting Critical Conditions
                                         Location of Use.               that exist, or that the approved
                                                                         critical user reasonably expects could
                                                                         arise without methyl bromide
                                                 PRE-PLANT USES
Strawberry Fruit......................  California growers in 2015 and  Moderate to severe black root rot or
                                         2016..                          crown rot
                                                                        Moderate to severe yellow or purple
                                                                         nutsedge infestation

[[Page 61993]]

                                                                        Moderate to severe nematode infestation
                                                                        Local township limits prohibiting 1,3-
                                                POST-HARVEST USES
Dry Cured Pork Products...............  Members of the National         Red legged ham beetle infestation
                                         Country Ham Association and    Cheese/ham skipper infestation
                                         the American Association of    Dermestid beetle infestation
                                         Meat Processors, Nahunta Pork  Ham mite infestation
                                         Center (North Carolina), and
                                         Gwaltney of Smithfield Inc..

[FR Doc. 2015-26301 Filed 10-14-15; 8:45 am]