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SUMMARY OF PUBLIC COMMENTS FOR 

THE NOTICE OF PROPOSED RULEMAKING:

THE 2006 CRITICAL USE EXEMPTION FROM THE PHASEOUT 

OF METHYL BROMIDE

1. SUMMARY OF COMMENTS RELATING TO THE PROPOSED CRITICAL USES ............................2

1.A. PROPOSED CRITICAL USES ..........................................................................................................................2

1.B. LIMITING CRITICAL CONDITIONS ................................................................................................................3

2. SUMMARY OF COMMENTS RELATING TO CRITICAL NEED FOR METHYL BROMIDE...........8

2.A. TOTAL LEVEL OF CRITICAL NEED ...............................................................................................................8

2.B. VERIFICATION OF STATE REGISTRATIONS ALLOWING THE USE OF SULFURYL FLUORIDE...........................9

2.C. ESTIMATED UPTAKE OF SULFURYL FLUORIDE ..........................................................................................10

2.D. BARRIERS TO ADOPTING OTHER ALTERNATIVES ......................................................................................14

2.E. POST-HOC REVIEW....................................................................................................................................16

3. SUMMARY OF COMMENTS RELATING TO THE SOURCES OF CRITICAL USE METHYL 

BROMIDE..................................................................................................................................................................17

3.A. PROPORTION OF CRITICAL USE METHYL BROMIDE FROM PRE-PHASEOUT INVENTORIES AND FROM NEW 

PRODUCTION/IMPORT..............................................................................................................................................17

3.B. PETITION PROCESS AND REQUIREMENTS FOR ALLOWING CRITICAL STOCK ALLOWANCES TO BE 

EXCHANGED FOR CRITICAL USE ALLOWANCES ......................................................................................................21

4. SUMMARY OF COMMENTS RELATING TO CRITICAL USE ALLOWANCE ALLOCATIONS...23

4.A. TOTAL LEVELS OF EXEMPTED PRODUCTION/IMPORT FOR CRITICAL USES................................................23

4.B. ALLOCATION OF CUAS INTO SECTOR SPECIFIC GROUPINGS VERSUS PRE-PLANT AND POST-HARVEST 

GROUPINGS .............................................................................................................................................................24

5. SUMMARY OF COMMENTS RELATING TO CRITICAL STOCK ALLOWANCE ALLOCATIONS

25

6. SUMMARY OF COMMENTS RELATING TO CLARIFICATIONS TO THE FRAMEWORK RULE

26

7. SUMMARY OF COMMENTS RELATING TO RULEMAKING AND THE REGULATORY 

PROCESS...................................................................................................................................................................27
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1. Summary of Comments Relating to the PROPOSED CRITICAL USES

1.a. Proposed Critical Uses

Commenter Organization Document ID No

William Murray American Forest & Paper Association 1

Dr. Scott Enebak Southern Forest Nursery Management Cooperative 0152, 0152-A, 0169

Philip Wilson Mississippi Forestry Commission 0153

Anonymous None 0154

David Doniger Natural Resources Defense Council 0173

Gene Harrington NPMA 0174

Four commenters state that the Members of the Southern Forest Nursery Cooperative were not 

listed as Approved Critical Users, even though other consortium members are listed as they 

were in previous rules (e.g., Weyerhaeuser, International Paper, Michigan Growers). One 

commenter notes that they were informed by EPA that this omission was inadvertent and the 

Cooperative would be returned to the final rulemaking. [1] These commenters request that 

the proposed rule be amended to reflect the previous CUE Rules for Approved Critical User 

and Location of Use, which was:

“Members of the Southern Forest Nursery Management Cooperative limited 

to growing locations in Alabama, Arkansas, Florida, Georgia, Louisiana, 

Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, 

and Virginia.” [0152, 0152-A, 0153, 0154, 0169]

One commenter believes that the Southern Forest Nursery Cooperative should represent 

individual members in the ruling. [0154]

Response: EPA agrees that the Southern Forest Nursery Management Cooperative should have 

been listed as an approved critical user. The Cooperative filed a critical use exemption 

application with EPA and the forest seedling sector was approved by the Parties as an agreed 

critical use category for 2006. Therefore EPA is correcting the Table of Approved Critical Users 

to reflect this consortia. 

One commenter is concerned about the characterization of the exemption for NPMA members. 

Specifically, the commenter is concerned that the phrase “dry commodity fumigation” does 

not make it clear that the commodity will be fumigated as part of a space fumigation. The 

commenter also requests that EPA clarify whether critical use methyl bromide may be used 

for dried milk. Noting the May 2005 TEAP Report, which states that the “component of the 

nomination for milk processing facilities has been withdrawn,” this commenter maintains that 

dried milk is still a justifiable exemption. This commenter suggests that the language used to 

describe NPMA be changed to:

“Members of the National Pest Management Association treating cocoa beans 

in storage and associated spaces and equipment and processed food, cheese, 
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dried milk, herbs, and spices and spaces and equipment in associated 

processing facilities.” [0174]

Response: EPA notes that the May 2005 TEAP report (p. 24) eliminated 

dried milk as an approved critical use. However, the Parties to the Protocol 

approved this use in Decision Ex. II/I, taken on July 1, 2005. In Table A of 

the Annex, “dry commodities/structures (processed food, herbs, spices, dried 

milk and cheese processing facilities” are approved critical uses. Therefore, 

EPA is authorizing dried milk as an approved critical use, and adding cheese 

processing facilities to the Table as well. 

One commenter objects to the final portion of the proposed rule that grants 

domestic approval to critical use categories not yet fully reviewed or approved 

in a Decision of the Parties. This commenter believes that EPA’s current 

proposal would reject the obligation for a second look by the U.S. to assure 

compliance with the Decision IX/6 conditions and would deprive the public of 

the opportunity to comment on EPA’s proposed result. [0173]

Response: EPA was as specific as possible in the October 27, 2005 proposed rule regarding the 

size and nature of the supplemental request in order to provide the public a full opportunity to 

comment. There is no significant new information to put before the public at this time. 

Therefore, a second comment period is unnecessary. The commenter suggests that EPA take a 

second look at the supplemental amount on the basis of the most up-to-date information. 

However, in this instance the information that formed the basis of the Parties’ decision is the 

most up-to-date information available. That information was included in the U.S. response to 

MBTOC, submitted in August 2005. 

1.b. Limiting Critical Conditions

Commenter Organization Document ID Number

Dow Dow AgroSciences 0157.1

Gene Harrington NPMA 0174

One commenter requests EPA to amend the phrase “moderate to severe beetle or moth 

infestation,” found under the “Limited Critical Condition” column on pg. 62054, to read 

“moderate to severe pest infestation.” The commenter expresses concern that a strict 

interpretation of “beetles and moths” would prevent the fumigation of other significant 

medical pests. [0174]

Response: EPA agrees with the commenter’s suggestion and has incorporated this suggestion. 

One commenter specifically notes its agreement that there are situations and conditions where 

continued use of MB is justified and that the test of Limiting Critical Conditions (LCCs) 

should be applied for each critical user at the time of licensing for each critical use. This 

commenter emphasizes that the LCCs must be reviewed and updated frequently as the 

registration status and regulatory restrictions for methyl bromide and alternatives. With 
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respect to the specific LCCs, the commenter believes that there are several examples where 

the proposed LCCs do not adequately consider the availability and utility of alternatives and 

where the LCCs need to be refined to describe the limiting conditions more accurately. 

Response: The U.S. Nomination describes the limitations of alternatives for the specific 

circumstances of the nominated acreage, and only requests methyl bromide in instances where 

alternatives are not available or do not provide sufficient levels of pest control. As the 

Nomination is a document compiled on an annual basis, EPA considers the most up-to-date 

research and technical information and describes each sector in a detailed fashion. EPA 

describes the specific circumstances that make alternatives not technically or economically 

feasible for a portion of domestic uses in every nomination. 

In the final Framework rule (69 FR 76982) EPA described, and responded to, comments on 

specific LCCs. For example, in the corresponding proposal, EPA had listed “moderate to 

severe nematode pressure” as a LCC. However, in the final rule, EPA eliminated the LCC of 

“moderate to severe nematode pressure” in all uses except Michigan tomatoes because the 

commenter correctly stated that there were effective alternatives to control this condition 

when it occurs alone. EPA also eliminated “moderate to severe pathogens” in all uses except 

Michigan tomatoes, and modified the buffer zone LCC to reflect recent label changes that 

reduced the buffer zone to 100 feet from an occupied structure. EPA will continue to modify 

the LCCs accordingly as to reflect current circumstances and label changes, but only received 

one series of comments pertaining to the LCCs for the 2006 critical use exemption rule. 

Regarding the test of LCCs that should be applied for each critical user at the time of 

licensing for each critical use, EPA notes that each user is required to complete a selfcertification form. The self-certification language can be found in Section 82.13, 40 CFR part 

82. The certification also identifies the acreage/square footage treated. A user cannot 

complete the self-certification form if s/he is not subject to the corresponding LCCs for each 

sector. The penalties for not following these requirements can be found in the final allocation 

framework rule (69 FR 76982). 

The commenter points out the qualifying statement in the LCCs that in order to meet the 

criteria for a LCC each critical user must have a “reasonable expectation that one or more of 

the following limiting critical condition either already exists or could occur...” and argues 

that in order to ensure the accuracy and validity of all LCC claims, methyl bromide critical 

users should provide documentation that would form the basis for these “reasonable 

expectations.” For LCCs that do not vary year-to-year, the commenter believes that providing 

the documentation would be a one-time event; for situations where the LCCs vary between 

control periods, supporting information should be required for each instance (e.g., field or 

structures) where methyl bromide allocations are requested. This commenter believes that in 

order to ensure that the limited methyl bromide is allocated properly, information on the 

specific circumstances of each use site and documentation from an independent source 

demonstrating the basis for the reasonable expectation must be required. The commenter also 

notes that 2005 critical use allocations should benefit from the information and experiences of 

the 2005 critical uses. 
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Response: These comments appear to be outside the scope of the proposal. However, the 

reporting and recordkeeping requirements published in the framework rule are tools to ensure 

that methyl bromide is allocated properly. The framework rule also details the penalties for 

end-users, producers, importers, distributors, and applicators who fail to follow the 

regulations. 

Having an independent source verify the basis for reasonable expectation would be 

burdensome and costly for end-users and applicators. Applications are reviewed and analyzed 

thoroughly by EPA and other U.S. government experts, and end-users must self-certify that 

they are approved critical users. Users must submit applications to EPA three years in 

advance. An additional certification process and additional documentation would prove too 

burdensome for end-users. However, many growers are in contact with extension agents, and 

in California, Agricultural Commissioners keep detailed records of pest pressure. [will verify 

this.]

This same commenter also provides criticism of several of the LCCs listed in the proposed 

ruling. The commenter notes specifically, however, that its comments are relevant only to the 

viability of products produced by the commenter or used in combination with the 

commenter’s products. [0157.1]

Pre-Plant Uses

− Yellow or Purple Nutsedge: The commenter believes this LCC should not be used as a 

criteria for determining the need for methyl bromide in all situations. The commenter 

believes that several herbicides (Sandea®, Envoke®, Dual® Magnum, and metam 

sodium, Treflan®, and Devrinol® when used with 1,3 D) are commercially available for 

use on tomatoes, peppers, and other crops. The commenter believes that yellow and 

purple nutsedge should only qualify as an LCC when it can be demonstrated by users that 

these products are not viable for controlling nutsedge on their particular fields. This 

commenter also provided information demonstrating the utility of these new herbicides in 

controlling nutsedge. 

Response: EPA wishes to reiterate that the Nomination is only for those areas where 

alternatives are not effective against pests. For example, in Florida, areas without Karst 

geology and having low nutsedge pressure can successfully employ a fumigation relying on 

1,3-D and chloropicrin. (2004 CUN, Tomatoes: p. 10) Areas that use methyl bromide do so 

because hilly terrain, cold soil temperatures, and heavy pest pressure—including yellow and 

purple nutsedge in the Southeastern U.S.—preclude the use of fumigants that are employed 

when these conditions are not present. 

− Nematodes: The commenter states that 1,3-D is widely recognized as a highly effective 

nematicide and is used by several crops in the U.S. that face nematode-only soil pests. 

Thus, this commenter believes that nematode infestation is not sufficient to justify a 

methyl bromide critical use. This commenter also provided information demonstrating 

the utility of 1,3-D in controlling nematodes.

Response: At moderate to severe pest pressure, only MeBr can effectively control the target 

pests found in the Eastern U.S., which includes nematodes. Related dosage rates of 202 kg/ha 
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are below the threshold in recent MBTOC reports, making further reductions difficult to 

achieve without compromising pest management. In the California strawberry sector, 

nematodes are among the target pests controlled with methyl bromide at moderate-severe 

pressure. MeBr applications in California are typically made at 67:33, or where feasible, 

57:43 mixtures with chloropicrin under plastic mulch. It should be noted that the California 

strawberry sector has consistently reduced their MeBr requests since the inception of the CUE 

program. 

− Fungal Pathogens: The comment believes that chloropicrin, either alone or in 

combination with 1,3-D, has demonstrated excellent control of soil-borne pathogens and 

therefore that fungal pathogens should not justify, by itself, a critical use. This commenter 

also provided information demonstrating that products that contain 1,3-D and chloropicrin 

provide effective nematode and disease control. 

Response: EPA is aware that 1,3-D can provide adequate control of fungal pathogens in 

certain circumstances. For example, in the orchard replant sector (California) armellaria and 

phytopthora are pathogens that are considered key pests that contribute to orchard replant 

disorder. EPA understands that alternatives such as 1,3-D are effective in reducing the effects 

of orchard replant disorder where there are no legal restrictions and in light, sandy loam soils, 

and where there is acceptable soil moisture. In other situations, where soils are medium to 

heavy, or where township caps are applicable, MeBr is the only compound that can 

effectively target root remnants from previous orchard trees. (2004 CUN, Orchard Replant: 

p. 16)

− Occupied Structures: The commenter provides an alternate interpretation of the proposed 

LCC related to the presence of occupied structures within 100ft of a 100 acre (or less) 

field. The commenter’s interpretation is that the LCC would be relevant to the impacted 

fraction of the field. That is, if an occupied structure precluded 3% of a 100 acre field 

from being treated with a methyl bromide alternative, then 3% of the field would be 

justified for an LCC. The commenter notes that local buffer zone requirements for the use 

of methyl bromide may alter the “occupied structure” LCC, and if the buffer zone 

requirement is comparable for both methyl bromide and its alternatives, the occupied 

structure LCC would not be justifiable. 

Response: The U.S. estimates of the area impacted by 100ft buffer zones are based on 

estimated from applicants and alternatives manufacturers and include factors such as: average 

field size, the density of habitable structures near strawberry fields, population distributions, 

and surveys by extension agents. In the Eastern U.S., however, there are many “pick-yourown” strawberry farms (less than 4 hectares) where the impact of a 100ft buffer zone is more 

pronounced than on larger farms in California and Florida. (2005 CUN, Strawberry Fruit: p. 

35). EPA believes that the buffer zone requirements apply to the presence of occupied 

structures within 100ft of a 100 acre (or less) field. 

− Township Limits: The commenter believes that this should only be a LCC if the 1,3-D 

allocation limit has been met for the particular township for the critical user. This 

commenter notes, however, that Cal-DPR in 2002 instituted the “California Management 

Plan: 1,3-Dichloropropene,” which allows 1,3-D to be made available to growers beyond 

the current 1X cap levels, and that in some regions of California, growers have been able 

to access amounts greater than 2X the amount of 1,3-D that was referred to in the TEAP 
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report. The commenter also points out that 1,3-D allocation limits may vary across years 

and townships, so that it is not appropriate to state the specific limit of these township 

allocations in Appendix L. Lastly, the commenter notes that the township allocation 

limits in California have been rarely exceeded since they were established in 1996. 

[0157.1]

Response: EPA recognizes that 1,3-D allocation limits may vary across years and townships, 

but did not specifically state the specific limit of these township allocations in Appendix L. 

Instead, in the table of LCCs, EPA stated “...a prohibition on the use of 1,3-D 

dichloropropene products because local township limits for this alternative have been 

reached.” EPA continues to support listing township caps as a relevant LCC for California 

crops. In the past, EPA has been made aware of at least two townships where the limit has 

been exceeded, but continues to support the use of 1,3-D and other alternatives in areas where 

there is lighter pest pressure and where township cap limits have not yet been exceeded. 

Post-Harvest Uses

With respect to post-harvest uses, this commenter believes that it is important that the LCCs 

and their requirement be updated to reflect the new registrations of sulfuryl fluoride. This 

commenter points out that when the 2006 CUNs were being prepared, heat and phosphine 

were the best alternatives to methyl bromide in post-harvest applications, and that with the 

registration of sulfuryl fluoride, the following LCCs should be removed from the proposed 

rule.

Response: EPA will address additional comments below, but notes that reductions in postharvest CUAs have been made in the final rule, accounting for increased uptake of sulfuryl 

fluoride. 

− Food Processing Facilities with Older Structures that Cannot be Properly Sealed: The 

commenter believes that because the volatility properties of methyl bromide are not 

significantly different from sulfuryl fluoride and other structural fumigant alternatives, 

there is no basis to grant methyl bromide access based on the ability to seal a structure.

Response: EPA wishes to reiterate that the Nomination is only for those areas where the use 

of alternatives is not feasible. In addition, sanitation and IPM are used to manage pest 

populations and extend the time between fumigations. EPA has encouraged all applicants to 

seal their structures, but recognizes that older food processing facilities, especially those 

constructed of wood, experience more frequent and severe pest infestations that must be 

controlled by fumigation. 

− Food Processing Facilities with the Presence of Sensitive Electronic Equipment: The 

commenter believes that this should not be a LCC because sulfuryl fluoride is not 

corrosive to sensitive electronic equipment.

Response: In the 2004 CUN, EPA notes that the corrosive nature of phosphine on certain 

metals prevents its use in mechanical and electrical areas of the facilities. The corrosive 

nature of phosphine is one of the reasons why methyl bromide is still necessary in some 

instances. EPA also notes that the industry is trying to incorporate sulfuryl fluoride into their 

best management practices and has amended the 2006 CUE allocation accordingly. 
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− Commodity Storage- Rapid Fumigation: The commenter believes that “rapid fumigation” 

no longer justifies a LCC because sulfuryl fluoride is equally as effective as methyl 

bromide in performing rapid fumigations. [0157.1]

Response: MeBr is used primarily to treat stored agricultural commodities during very short 

periods, during the peak production season, shortly after the harvest before they can be stored 

and/or shipped. Alternatives are used in instances where there is lighter pest pressure and 

where the character of the final product does not change as a result of fumigation with 

alternatives. 

2. Summary of Comments Relating to CRITICAL NEED FOR METHYL 

BROMIDE

2.a. Total Level of Critical Need

Commenter Organization Document ID Number

Steve Kleine None 2

Barbara Caro None 3

Tamara Pessah None 4

Barbara Sachu None 0151

Barry Bidwell California Grape & Fruit Tree League 0165, 0167.1

Victor Lilley Berry Tyme Farms 0166

Kirk Hunter Turfgrass Producers International 0168.1

David Doniger Natural Resources Defense Council 0173, 0173.2, 0173.3

Marylinn Schwanitz None 0179

Four commenters believe that there are no urgent needs for methyl bromide, so its use should be 

banned. [2, 3, 4, 0151, 0179] Several of these commenters state that the use of methyl 

bromide is in violation of the Montreal Protocol and others state that methyl bromide 

threatens the ozone layer and the health of the American public. One commenter also 

believes that there has been sufficient time for users to develop alternatives. [0179]

Response: EPA has addressed these comments in the Preamble of the Final Rule. 

One commenter believes that EPA has failed to comply with the criteria established Decision 

IX/6 by not carrying out its duty to determine whether the amount of methyl bromide it 

proposed to authorize for critical uses reflects all technological and economically feasible 

steps to minimize its use and emissions. Additionally, the commenter believes that EPA 

recognizes that the status of methyl bromide alternatives may have changed since the May 

2005 MBTOC report, which would justify the use of less methyl bromide, but has shifted the 

duty of submitting “adequate quantitative information” to the public. 

Response: The commenter may be confusing two different portions of Decision IX/6. EPA’s 

consideration of new information is discussed in the Preamble. As the commenter states, EPA 

does recognize that the status of methyl bromide alternatives has changed since the May 2005 

and has reduced the post-harvest critical use allowances (CUAs) accordingly. By requesting 

additional information from the public, EPA was simply seeking additional data on alternatives. 

The commenter did not mention any specific further steps, in addition to those described in the 
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Nomination, that could be taken to “minimize the critical use and any associated emission of 

methyl bromide.” 

This commenter believes that total usage data from 2004 was lower than the level claimed to 

be critical for 2006. They have previously requested total usage data from 2004 (in comments 

on the proposed supplemental critical use allocation for 2005) be made publicly available, 

which is now available and feel this information will demonstrate the lack of rational basis for 

the proposed rule. Furthermore, the commenter states that EPA cannot avoid considering this 

aggregate usage data by claiming that only individual, use-by-use data can trigger the 

obligations for a “post hoc” assessment of technological and economical feasibility. They feel 

that aggregate usage data is a more reliable than use-by-use data (citing the NRDC’s opening 

and reply briefs in NRDC v. EPA). [0173.1]

This commenter further states that the proposed critical use allowances exceed demand. The 

total usage for 2003 demonstrates that the amount of methyl bromide used in 2003, calculated 

as production plus import minus export plus draw-down from stocks (7,764 metric tons), is 

lower than the amounts requested for critical uses in 2005 and 2006 (8,075 metric tons) by 

nearly 5%. Further information is provided in an attachment. [0173, 0173.3]

Response: EPA’s estimates of use vary by approach (top-down v. bottom-up, etc.) The 

amount of CUE methyl bromide requested was the result of a robust technical and economic 

analysis undertaken for every sector, and did not include additional growth. For additional 

information on use estimates, see the Response to Comment document for the Framework 

rule (pp. 7-8). 

Three commenters are of the opinion that EPA’s proposed rule may include assumptions that 

underestimate the 2006 requirements for methyl bromide. [0165, 0167.1, 0166, 0168.1] One 

commenter addresses pest pressures including yellow and purple nutsedge as well as the 

inadequacies of alternatives, including ineffectiveness, long waiting periods, application 

regimes, and worker safety. [0166] Another commenter is concerned about the reduction in 

new production allocated for pre plant uses in 2006 by over 2 million pounds from the 2005 

allocation when no new alternatives have been registered and the gulf storms in 2005 will 

likely result in higher methyl bromide usage. [0168.1]

Response: EPA wishes to reiterate that the 2006 request was based on careful analysis, and was 

for those areas where alternatives are not feasible. EPA accounts for regulatory and other 

variables that would preclude the use of alternative fumigants when developing the CUN. With 

regard to the reduction from 2005, EPA wishes to note that the U.S. was granted approximately 

90 percent of its request from the Parties. 

2.b. Verification of State Registrations Allowing the Use of Sulfuryl Fluoride

Commenter Organization Document ID Number

Bruce A. Houtman Dow AgroSciences 0164, 0178

Dow Dow AgroSciences 0177
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 One commenter provided attachments regarding the state registration status of ProFume gas 

fumigant. All states have now granted registration status to ProFume gas. [0164, 0177, 0178]

Response: EPA notes and appreciates this submission. 

2.c. Estimated Uptake of Sulfuryl Fluoride

Commenter Organization Document ID Number

William Murray American Forest & Paper Association 1

Miriam Borja Western Industries 5

Dan Jenkins Dow AgroSciences LLC 6, 7

Suresh Prabhakaran Dow AgroSciences LLC 0155, 0155.1, 0155.2, 0155.3, 

0155.4, 0155.6, 0155.7, 

0155.8, 0155-A

Dow Dow AgroSciences 0157.1

Susan Lewis Methyl Bromide Industry Panel of the 

American Chemistry Council

0158.1, 0161.1

Dennis Balint CA Walnut Commission 0159.1

Mark Reddick Reddick Fumigants 0160.1

Henry Giclas Western Growers 0162.1

Victor Lilley Berry Tyme Farms 0166

Kirk Hunter Turfgrass Producers International 0168.1

Stephen Payne The Pet Food Institute 0170

David Doniger Natural Resources Defense Council 0173

Gene Harrington NPMA 0174

Steve Hensley USA Rice 0175

Steven Hamilton The Urban Environmental Affairs Council 0176

Dow Dow AgroSciences 0177

Nine commenters believe that EPA has not provided a sufficient rationale to justify the 15% 

reduction in the amount of methyl bromide allocated to post-harvest uses to account for use of 

sulfuryl fluoride. These ten commenters believe that actual data on the use of methyl bromide 

in post-harvest applications will be available in early 2006 and suggest that this data be used 

to determine the uptake of sulfuryl fluoride in 2005 and as the basis for future adjustments to 

the post-harvest use levels. [5, 0158.1, 0161.1, 0159.1, 0160.1, 0162.1, 0166, 0168.1, 0170, 

0175]

Response: EPA has addressed these comments in the Preamble. 

− Eight commenters further note that in the 2005 CUE rule, EPA stated that it did not have 

sufficient data to conduct a technical and economic analysis to determine the accurate 

market uptake of sulfuryl fluoride and that it would require 5 fumigation cycles of use 

before the efficacy of sulfuryl fluoride could be determined. These commenters find no 

indication that this data is now available and states that EPA has not explained why it has 

estimated sulfuryl fluoride market penetration without the data it stated was required.

These commenters believe that EPA has provided no factual basis to justify the 15% 

reduction and simply selected a number between its earlier estimate of 25% penetration of 

sulfuryl fluoride and the MBTOC estimate of 10% to arrive at a 15% reduction to account 

for sulfuryl fluoride use. These commenters note that the original CUE nomination was 

reviewed by two panels of experts (EPA and MBTOC), and approved by the Parties to the 
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Protocol, and is being changed by EPA in eleventh hour without sufficient review. The 

commenters felt that stakeholders need to be involved with the process.

Additionally, because the specific uses to which the 15% reduction was applied are not 

listed, these commenters are of the opinion that it is not possible to comment on the 

accuracy of the estimate. [0158.1, 0161.1, 0159.1, 0160.1, 0162.1, 0166, 0168.1, 0170, 

0175] 

− One commenter believes that the assumption that 15% of methyl bromide use will be 

replaced by sulfuryl fluoride may not be viable based on the efficacy and economics of 

sulfuryl fluoride across all sites. [0162.1]

− One commenter states that they submitted data in the past year to EPA detailing the much 

higher costs of sulfuryl fluoride and its lower efficiency compared to methyl bromide. 

The commenter also states that recent tolerances set in the U.S. do not equate to tolerances 

for sulfuryl fluoride in their export markets thereby limiting its use. [0175]

Based on the implications of the November 8th letter from Deputy Assistant Administrator Susan 

Hazen to the Pet Food Institute and the label restrictions on sulfuryl fluoride, ten commenters 

strongly question EPA’s estimate that there will be a 15% uptake of sulfuryl fluoride in 2006 

and request that EPA restore the full amount authorized by the Parties to the post-harvest 

uses. The commenters also note that there is no indication in the proposed rule that EPA even 

considered these label restrictions in reaching its 15% uptake prediction. [5, 0158.1, 0161.1, 

0159.1, 0160.1, 0162.1, 0166, 0168.1, 0170, 0174, 0175]

− Two commenters believe that the label requirement that all finished product and the 

majority of the facility’s bagged ingredients must be removed from the premises would 

substantially increase a facility’s downtime and possibly permit pests to find refuge in 

untreated products. Additionally, the commenters state that the cost of removing large 

amounts of material from the facility, additional lost work time, and supplement 

treatments is prohibitive, and that there is not often an obvious place to store the material 

being removed from the facility. According to the commenters, methyl bromide standard 

operating procedures do not require the removal of food items from the premises. [0174, 

0160.1]

One commenter believes that a letter from EPA to the Pet Food Institute (dated November 8, 

2005) conflicts with the most current EPA-approved label language and EPA risk assessment 

published in the Federal Register. The commenter thinks it is necessary to clarify that the 

letter is relevant only to fumigation circumstances that involve processed foods for which no 

specific tolerance has been established to support the use of ProFume and that it does not 

apply to grain milling or stored commodity fumigation scenarios, which are use patterns fully 

supported with commodity-specific tolerances. 

This commenter is of the opinion that the conditions of use and use directions for EPAapproved ProFume address and mollify the two concerns provided by stakeholders for why 

they cannot use ProFume: 1) processed foods for which there is not a commodity-specific 

tolerance cannot be fumigated with ProFume; and 2) facility operators cannot empty their 

structures prior to space fumigations. This commenter states that while processed foods not 
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supported with commodity specific tolerances cannot be “directly” fumigated with ProFume, 

the label does permit the “incidental” fumigation of any processed food, including pet food, 

that is impractical to remove prior to fumigation of a facility. The ProFume label states:

Special care should be taken to minimize quantities of processed foods prior to space 

fumigations. Processed food not practical to remove prior to fumigation may undergo 

incidental fumigation with ProFume. However, no direct fumigation of processed 

foods is permitted unless the processed food is specifically listed in the section 

“Commodities That Can Be Fumigated.”

EPA has also established the appropriate processed food tolerances (40 CFR Part 180.145 and 

Part 180.575). This commenter believes that because the incidental fumigation of up to one 

day’s production volume of food (assumed to remain in the food processing facility during 

fumigation) is factored into the EPA risk assessment (Federal Register, July 15, 2005 pg. 

40902), the stakeholders that cite the impracticality of removing all processed food from the 

facilities prior to fumigation have no basis for their alleged inability to use ProFume.

Considering the commercial transition from methyl bromide to ProFume that has already 

taken place, as well as the letter’s relevance to only pet food, food processing, and bakeries, 

which represent the minority of post-harvest methyl bromide uses, this commenter believes 

the letter from EPA to the Pet Food Institute does not interfere with EPA’s plan to reduce 

post-harvest allocation of methyl bromide by a minimum of 15% in 2006. [0177] 

One commenter believes that EPA should verify its 15% uptake assumption with actual use 

before restricting critical use methyl bromide. This commenter also believes that if sulfuryl 

fluoride is actually a viable alternative, EPA should guide the transition consistent with the 

ability of all industries to complete a transition to its use. [1]

One commenter provided several testimonials from companies that support the use of ProFume 

as an alternative to methyl bromide. [6] The following testimonials were included:

− Fume tech, Inc.: The commenter states that ProFume is effective and is used by one of the 

largest US rice processors. The commenter also believes that ProFume can be cost 

effective, even though costs associated with materials and labor are higher. This is 

because a mill treated with ProFume can be aerated more quickly after application than a 

mill treated with methyl bromide, resulting in less facility downtime. The commenter also 

believes that the Fumiguide calculator helps track the progress of fumigations, making 

them more precise.

− Gold River Mills: The commenter provide testimonial that ProFume is equal to or better 

than methyl bromide at fumigating his mill for Red Flour Weevils and Rice Weevils. The 

commenter finds the cost of ProFume slightly higher than methyl bromide, but believes 

that ProFume can be a competitive alternative to methyl bromide.
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− Stafford County Flour Mills Co.: The commenter provides testimonial that ProFume is a 

very good alternative to methyl bromide and is more effective in the case of concrete bulk 

flour storage bins.

− Fumigation Service & Supply: The commenter has used ProFume in over 100 post harvest 

fumigations and believes ProFume is a product that will provide the post harvest market 

sector with efficacious and cost effective treatment. Additionally, the commenter believes 

that the initial higher costs associated with ProFume can reduced by better management of 

fumigations. The commenter provides an attachment of the real time commercial costs of 

and effects of ProFume.

− Research Fumigation Company, LLC: The commenter’s experience with ProFume has 

been very positive. The commenter believes that ProFume helps to improve their industry 

by requiring proper oversight and better fumigation management, and increasing safety 

and exposure issues by requiring the introduction of the fumigant from outside of the 

treated structure.

− Stored Food, Commodity, Fumigation: The commenter cites several benefits of ProFume 

including it is a non-ODS, is non-corrosive to metals and electrical equipment, is an 

excellent penetrator that desorbs rapidly, aerates easily and rapidly, is effective on all 

insect life stages, and is non-flammable and odorless.

One commenter provides published research that supports the 15% methyl bromide reduction. 

The paper is entitled, “Monitoring the Red Flour Beetle, Tribolium Castaneum and other 

Stored-Product Insects with Traps in Flour Mills.” [7]

One commenter expresses concern that ProFume is being promoted by EPA as a methyl bromide 

alternative in post-harvest applications because this commenter believes that there is strong 

evidence that ProFume causes cancer in children and that the level of fluoride in the U.S. 

population’s diet is dangerously high. [0176]

One commenter agrees with EPA’s proposal to reduce the volume of methyl bromide allocated 

for post-harvest use in the 2006 control period, but does not think that the proposed 15 % 

reduction reflects the degree of transition that has already taken place. The commenter 

believes that the post-harvest methyl bromide use sector is positioned to make a rapid, 

aggressive transition to alternatives. The commenter notes that ProFume is registered in 49 of 

50 states and for each of the 2006 post-harvest critical uses and summarizes the details of the 

federal and state registration status of sulfuryl fluoride. 

The commenter also provides a correction to the statement in the proposed rule that “there 

have been 18 months of trials and potential adoption by similar facilities since the first 

sulfuryl fluoride registration action.” The commenter states that commercial-scale trials of 

ProFume have been underway in the U.S. since 1998. [0157.1]

Two commenters believe that the transition timetable of 15% penetration in 2006 proposed by 

EPA does not reflect the rate that should be required for methyl bromide, the use of which has 

been banned in the U.S. Given these circumstances, the commenters believe that the phaseout 
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DRAFT (1/05/06): do not cite or quote

rate should be quickened by the U.S. government to maintain compliance with the Clean Air

Act and the Montreal Protocol. One commenter states that the pace of the phaseout of methyl 

bromide should not be left wholly up to the market to determine, and notes that more than 

15% of the grain milling market has already demonstrated success with ProFume. Another 

commenter believes that the market penetration of sulfuryl fluoride will be inhibited rather 

than accelerated as long as EPA allows methyl bromide to remain available for uses that the 

new chemical could address. [0157.1, 0173] 

One commenter provided several attachments on the technical viability of ProFume as an 

alternative for post-harvest uses, including the following information: [0155, 0155.1, 0155.2, 

0155.3, 0155.4, 0155.6, 0155.7, 0155.8, 0155-A]

− A study that indicates that methyl bromide and sulfuryl fluoride provided adequate levels 

of insect suppression and satisfied the customer (miller) need [0155.2].

− A study in a wheat flour mill where flour beetle counts were collected every month using 

70 traps from 2001-2005 that found that population rebound rates for ProFume and methyl 

bromide were similar [0155.3].

− A study that found that ProFume was effective against infestations of the confused flour 

beetle and the Mediterranean flour beetle, when compared with methyl bromide. [0155.4]

− The results of a bioassay conducted by Purdue University that examined the efficacy of 

ProFume on eggs, larvae, pupae, and adults (100% control of all life stage). [0155-A]

− A presentation of a study conducted at Kansas State University that indicates ProFume

fumigations were successful and did not disrupt customers’ operations or downtime 

[0155.6].

− A presentation of a study that found that fumigators and millers were satisfied with the 

efficacy and performance of ProFume when compared to methyl bromide [0155.7].

− Information on some of the commercial fumigation conducted in 2005 and the customer 

feedback used for a previous study. The document includes fumigations in different 

locations, seasons, temperature conditions, variable half loss time, resulting insect control 

ratings [0155.8].

2.d. Barriers to Adopting Other Alternatives

Commenter Organization Document ID Number

Dow Dow AgroSciences 0157.1

Dennis Balint CA Walnut Commission 0159.1

Mark Reddick Reddick Fumigants 0160.1

Kirk Hunter Turfgrass Producers International 0168.1

Dan Legard CA Strawberry Commission 0171

James Wells Environmental Solutions Group, LLC 0172

Steve Hensley USA Rice 0175

Steven Hamilton The Urban Environmental Affairs Council 0176

One commenter believes that there are several barriers to the complete phase out of methyl 

bromide. The commenter states that these include: a California mandated cap on the amount 

of 1,3-Dichloropropene that can be used in townships; concerns about the long-term 
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effectiveness of alternatives; and issues related to the transition from broadcast fumigation 

with methyl bromide to bed fumigation with alternatives. [0171]

Response: EPA understands that there are barriers concerning the adoption of alternatives to 

methyl bromide. EPA accounted for these issues, such as regulatory barriers, when developing 

the nomination and continues to monitor the status of alternatives research. 

One commenter believes that alternatives can only be effective under a narrow range of climate 

and structure conditions, whereas the use of methyl bromide is effective in a wide range of 

conditions. [0175]

Response: EPA understands that there are barriers concerning the adoption of alternatives to 

methyl bromide. In the Nomination, EPA requests methyl bromide for the acreage where 

alternatives do not control pest pressure adequately. 

One commenter believes that there is a lack of alternatives for pre-plant uses. [0159.1]

Response: EPA notes that there are several alternatives registered for various pre-plant uses and 

is currently evaluating all soil fumigants together. EPA encourages users to conduct additional 

research or explore additional production methods where possible. 

One commenter is concerned that EPA is promoting various chemical alternatives to methyl 

bromide, which are widely known to have severe negative health and environmental impacts. 

The commenter feels that EPA is disregarding its mandate to protect the environment by 

rushing the phaseout of methyl bromide. The commenter believes that 1,3-Dichloropropene

is a known carcinogen that can contaminate Florida groundwater and that methyl iodine is a 

known mutagen whose effects on the environment have not been widely researched. The 

commenter provides several articles on 1,3- Dichloropropene, Midas (methyl iodide), 

ProFume (sulfuryl fluoride), and fluoride. [0176] 

Response: See p. 42 of the Preamble. 

One commenter believes that the transition to alternatives has been restricted by the limitations 

of alternatives, including: (1) Chloropicrin lacks weed and nematode control and may have 

future registration issues; (2) Telone has a 21 day plant back, no weed control, is a potential 

carcinogen, and has groundwater and application issues; (3) Methyl iodide is not currently 

registered; (4) VIF mulch film is not user friendly or commercially viable; (5) Phosphine is 

corrosive to equipment and requires a longer fumigation period; (6) Sulfuryl fluoride does not 

allow for fumigation of processed food or pet food. [0160.1]

Response: EPA accounts for all of these points in the Nomination and requests critical use 

methyl bromide for those areas where pests are not adequately controlled with alternative 

fumigants. 
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One commenter points out a 2000 study by the National Center for Food and Agricultural Policy 

that identified sod as one of the most valuable uses of methyl bromide to justify methyl 

bromide use by this sector. [0168.1] This commenter claims that alternatives, including the 

only alternative EPA has listed for turfgrass sod, Basamid, provide inferior weed control. The 

most promising alternative, methyl iodide, is not registered for use in the U.S. This 

commenter estimates that transitioning away from methyl bromide will cost a representative 

grower a $5,957/acre loss in revenue per fumigation cycle due to inferior product and a lower 

proportion of harvestable acreage and incur increased costs of $2,100/acre, which will make 

sod production unprofitable and cost the sod industry as a whole $21 million in revenues and 

incur $7.4 million in increased production costs. [0168.1]

Response: EPA recognizes that for some uses, there are not effective and economic alternatives 

available yet. It is for this reason that EPA is creating a critical use exemption with this rule to 

allow for exempted production to meet the needs of users who do not have technical and 

economic alternatives available to them. 

One commenter states that supplies of 1,3-Dichloropropene are available for more rapid uptake. 

[0157.1]

Response: EPA notes that 1,3-D is effective under various circumstances and has prepared the 

annual Nominations accordingly. 

One commenter notes that California rose nursery production is restricted by annual caps on 

permitted use of 1,3-Dichloropropene and expresses concerned about its long-term 

effectiveness in producing disease free nursery stock. [0172]

Response: EPA has accounted for Telone township caps in preparing the Nomination, and 

recognizes the requirement that nursery stock be pest-free, as described in the California Nursery 

Stock regulations. EPA understands that county agricultural officials may certify a crop based 

on completion of a prescribed fumigation regime and that growers need to achieve nematode 

control to a depth of 1.5 meters to meet regulation requirements. 

2.e. Post-hoc Review

Commenter Organization Document ID Number

Bruce Houtman Dow AgroSciences 8

Dow Dow AgroSciences 0157.1

Justin Brown Golden State Bulb Growers 0163.1

One commenter states concern over the lengthy 3-year CUE allocation process, during which 

time many technical and regulatory changes may change the capacity of methyl bromide 

alternatives. This commenter is encouraged by the provision to the proposed rule that 

provides a mechanism for post-hoc review of “new information” so the continued legitimacy 

of methyl bromide CUE allocation and corresponding volumes can be determined and the 

phaseout rate can be enhanced. 
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This commenter requests that EPA conduct a post-hoc evaluation of the methyl bromide 

critical use allocation needs for pre-plant similar to what is proposed to post-harvest uses. 

This commenter believes that alternatives are now available and better known to the user 

community so that a more rapid uptake away from methyl bromide could take place in 2006. 

The commenter provides new information and data for 1,3-D soil fumigants to assess EPA in 

these assessments. 

This commenter also points out the significant adoption of alternatives that has taken place in 

a number of markets including the residential-structural market and the California strawberry 

market since the inclusion of methyl bromide in the Montreal Protocol. This commenter 

believes that a further transition away from methyl bromide in pre-plant uses is achievable in 

the next few years. [0157.1]

 One commenter provided several attachments regarding new technical information on the 

performance and capabilities of methyl bromide alternatives that might not have been 

available when the 2006 U.S. critical use nomination was approved to allow a post-hoc 

evaluation. [8]

 One commenter suggests that EPA wait until all information about methyl bromide use and 

inventories is available in early 2006 before deciding to reduce methyl bromide use beyond 

the 30% of 1991 baseline recommended by MBTOC. [0163.1]

Response: EPA addressed the above comments in the Preamble. 

3. Summary of Comments Relating to the SOURCES OF CRITICAL USE 

METHYL BROMIDE 

3.a. Proportion of Critical Use Methyl Bromide from Pre-Phaseout Inventories and from 

New Production/Import

Commenter Organization Document ID Number

William Murray American Forest & Paper Association 1

Miriam Borja Western Industries 5

E. Barclay Poling SE Strawberry Consortium 9

Miguel Cea Ag-Fume Services 0156

Dow Dow AgroSciences 0157.1

Susan Lewis Methyl Bromide Industry Panel of the 

American Chemistry Council

0158.1, 0161.1

Dennis Balint CA Walnut Commission 0159.1

Mark Reddick Reddick Fumigants 0160.1

Henry Giclas Western Growers 0162.1

Victor Lilley Berry Tyme Farms 0166

Kirk Hunter Turfgrass Producers International 0168.1

Stephen Payne The Pet Food Institute 0170

Dan Legard CA Strawberry Commission 0171

James W. Wells Environmental Solutions Group LLC 0172

David Doniger Natural Resources Defense Council 0173, 0173.1, 0173.2, 0173.4

Steve Hensley USA Rice 0175
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Fourteen commenters express concern with the provision in the proposed rule that allows 27% of 

critical use methyl bromide to come from new production, whereas Decisions XVI/2 and 

Ex.II/1 of the Parties to the Montreal Protocol allow for 30%, and increases the amount of 

methyl bromide to come from stocks from 2% to 5%. [1, 5, 9, 0156, 0158.1, 0161.1, 0159.1, 

0160.1, 0162.1, 0166, 0168.1, 0170, 0171, 0172, 0175] 

− Eight commenters believe that the full amount of new production and consumption should 

be allocated for 2006. These commenters find EPA’s proposal inconsistent with the terms 

of the relevant Decisions of the Parties; they find nothing in Decision XVI/2 and Ex. II/1 

to suggest that the amount authorized for new production/ imports by the Parties to the 

Montreal Protocol (7,658 MT) should be adjusted downward. The commenters believe 

that the requirement for a “renewed commitment” under Decision Ex. II/1 suggests a 

continuation of the commitment already made, not a new commitment to reduce levels of 

production and consumption. The commenters note that if the Parties wanted EPA to 

require a greater amount of material to come from stocks, they could have used different 

language, but they did not. The commenters also object to the regulation of pre-phaseout 

stocks of methyl bromide under the critical use program in general, and reference their 

earlier comments on the 2005 rulemaking. 

These commenters also believe that by requiring more critical use needs to be met from 

stocks, EPA is perpetuating the problem of market uncertainties related to the available 

level of stocks. Additionally, these commenters note that by approving the 7,658 MTlevel of production and consumption for 2006, the Parties have implicitly accepted the 

environmental effects associated with the use and release of that material. The 

commenters also believe that by reducing the amount of new production and imports for 

critical uses, EPA deprives non-critical users of supplies of methyl bromide that should be 

available to them. Furthermore, the commenters believe that it is important to preserve 

existing stocks to provide a “safety valve” in the event of a catastrophic constraint on 

supplies or an unexpected pest outbreak, and that EPA’s proposed rule may perpetuate a 

situation in which there are insufficient stocks to address such a catastrophe. [0158.1, 

0161.1, 0159.1, 0160.1, 0162.1, 0166, 0168.1, 0170, 0175]

− Nine commenters believe that EPA has no basis to assume that critical users have had no 

difficulty obtaining methyl bromide from stocks in 2005 because most users would only 

be experiencing difficulty now – in the end of the year after the proposed rule was issued. 

[9, 0158.1, 0161.1, 0159.1, 0160.1, 0162.1, 0166, 0168.1, 0170, 0175] 

o Two commenters noted that stocks are not uniformly distributed, either 

geographically or among commercial entities, and that at many distributor 

locations, stocks have already been depleted. These two commenters believe 

there are no stocks available, even if CSAs are issued, and that this constitutes 

a market disruption. [0162.1, 0168.1]

o One commenter states that they did not have enough CUE pounds of methyl 

bromide to supply their customers, so that users had to access existing 
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inventory purchased at the end of 2004 and in 2005. The commenter believes 

that additional shortage is caused by the 2005 Supplementals. [0160.1] 

o Ten commenters also believe that EPA has no basis for this assumption 

because actual data on the 2005 control period is not yet available. [9, 0158.1, 

0161.1, 0159.1, 0160.1, 0162.1, 0166, 0168.1, 0170, 0172, 0175] 

o Eight commenters believe that no downward adjustment should be made until 

EPA has fully evaluated the actual data for 2005. According to these 

commenters, EPA offers no factually-grounded basis for shifting the amount of 

methyl bromide to be obtained from new production/imports versus stocks. 

The commenters point out that it is well-established that EPA must have a 

rational basis for its decisions and that its conclusions must be supported by 

substantive evidence, and cite legal cases to support that point. [0158.1, 

0161.1, 0159.1, 0160.1, 0162.1, 0166, 0168.1, 0170, 0175].

− Two commenters express concern that there may be errors in the amount of methyl 

bromide that was estimated to be needed in each sector due to uncertainty in the critical 

use exemption and allocation process. Therefore, the commenters believe that the shifting 

of the source of 3% from new production/ imports to pre-phaseout stocks may result in 

insufficient supplies. [0171, 0172]. One commenter also believes that the increased 

depletion of pre-phaseout stocks of methyl bromide will likely increase the cost of the 

material. [0171]

− Five commenters believe that the accelerated use of stocks could result in possible 

concentration of stocks in the hands of a few large entities, which could further lead to 

localized market shortages. [0156, 0159.1, 0160.1, 0162.1, 0168.1] One commenter also 

noted that this could mean a time lag in delivery of methyl bromide and loss of potential 

business to the industry. [0159.1] 

− Three commenters believe that the accelerated use of stocks will result in the loss of the 

safety net that was supposed to be provided by the CSAs. [0160.1, 0162.1, 0168.1] 

− One commenter believes that it is not clear how increasing stocks to the 5% level from the 

required 2% will yield an environmental benefit, and that it does not make sense to 

increase the level of stocks if it means instituting a new petition process. This commenter 

also believes that it is unwise for EPA to drive up the cost of methyl bromide to encourage 

the transition to alternatives when research and development is not complete and the reregistration status of the fumigants is unresolved. [1]

One commenter notes that information generated for the 2005 control period, such as data from 

recordkeeping and reporting requirements associated with CSAs and CUAs and the Section 

114 information request on existing and available stocks, can and should be used to more 

precisely specify the balance between CUAs and CSAs in order to ensure that existing stocks 
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(CSAs) are utilized before the use of CUAs. This commenter also believes that no CUAs 

should be planned if adequate CSAs are available to satisfy the methyl bromide critical 

exemption needs for 2006 and that any under-prediction of available stocks should be 

corrected by the exchange of CUAs for CSAs. Specifically, the commenter requests the 

proposed rule state that the retirement of CUAs in exchange for CSAs shall be required, in 

accordance with Decision IX/6 and the objectives of the Montreal Protocol and Clean Air Act. 

[0157.1]

One commenter asserts that the proposed rule does not comply with the requirements of Decision 

XVI/2, ¶4 and Ex. II/1, ¶5 to comply with Decision IX/6 and to account for stocks. The 

commenter notes that these Decisions set an upper limit on production and consumption of 

30% of the U.S. 1991 baseline, or 7,658,265 kg, and that EPA has proposed to reduce this 

amount to 27% of the U.S. 1991 baseline and maintain the same draw on stocks as was done 

in 2005 (5% of baseline). The commenter believes that EPA failed to comply with ¶5 of 

Decision Ex. I/3, which requires that stocks be accounted for and new production and 

consumption only be permitted if methyl bromide is not sufficiently available in existing 

stocks. The commenter asserts that, in the 2005 rulemaking, EPA undertook no assessment of 

how much critical use need could be met with stocks and refused to disclose the total amount 

held by the 29 companies identified as holding stocks. According to a letter from Dona 

DeLeon, Acting Associate Administrator of EPA, dated February 10, 2004, five of these 

companies held at least 10,000,000 kg, or more than 40% of the U.S. baseline. [0173.2] In 

order to comply with Decisions Ex. I/3 and IX/6 and with Section 604(d)(6), the commenter 

argues that EPA was required to reduce production and import well below the 30% upper 

limit to account for these stocks, but that the agency did not make this reduction. Thus, the 

commenter believes that EPA cannot rely in the 2006 rule on its assessment of stocks in the 

2005 because the 2005 rule did not comply with the CAA or the Protocol. The commenter 

also submitted the formal request for usage data for 2004. [0173.4]

The commenter states that in the 2006 rule, EPA has acknowledged that the 30% 

production/import level is an upper limit, subject to reduction to account for stocks, but has 

only repeated the 5% draw on stocks from the 2005 rule that does not account for the 

quantities held in stocks. The commenter believes that this position does not comply with the 

Parties recent unanimous decision to change the language of ¶5 of Decision Ex. I/3 from 

“should ensure” to “renews its commitment to ensure” to reject the U.S. position that the 

previous language was merely “hortatory.” The commenter asserts that this new language is 

completely binding. According to the commenter, while EPA noted the change in wording, 

the agency called the new language “similar” to the earlier language and announced that it 

will make “no significant changes” to the erroneous interpretation in the 2005 rule (70 Fed. 

Reg. at 62,042/2), thereby disregarding the U.S. commitment under Decision Ex. II/1 and 

EPA’s obligations under Section 604(d)(6). 

This commenter requests that EPA disclose the amount of stocks held by private sector 

entities because this information is relevant to the outcome of the rule and should therefore be 

available for public comment under Section 307(d) of the Clean Air Act. The commenter 

specifically refers to legal arguments made in support of this point in prior comments and 

legal briefs. This commenter has received information suggesting that some or all of the 29 
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stock holders may be attempting to evade EPA’s current reporting procedures for stocks by 

transferring the legal title of previously reported stocks to other entities that will presumably 

use those stocks. In some cases, stocks may be relocated to the premises of such downstream 

users and in other instances legal ownership may have shifted while stocks remained 

physically in the same hands. According to the commenter, through these transactions, 

currently identified stock holders may be hoping to avoid reporting those stocks in the future 

and giving the impression that they no longer exist. The commenter asserts that stocks are not 

exempt from coverage of Decision IX/6 and should still be accounted for even if they are held 

by the ultimate user and need no further sale. Thus, this commenter requests EPA to broaden 

its Section 114 information gathering to make sure it accounts for all stocks and defeats any 

subterfuge of shifting ownership. EPA then needs to account for all such stocks in 

determining allowable levels of new production/import. [0173] The commenter provided 

their comments on the proposed 2005 exemptions and 2005 supplementary exemptions [0173] 

and NRDC v. EPA, No. 04-1438 (D.C. Cir., argued Oct. 17, 2005). [0173.1]

Response: EPA addressed the above comments in the Preamble. 

3.b. Petition Process and Requirements for Allowing Critical Stock Allowances to be 

Exchanged for Critical Use Allowances

Commenter Organization Document ID Number

Miriam Borja Western Industries 5

Dow Dow AgroSciences 0157.1

Susan Lewis Methyl Bromide Industry Panel of the 

American Chemistry Council

0158.1, 0161.1

Dennis Balint CA Walnut Commission 0159.1

Mark Reddick Reddick Fumigants 0160.1

Henry Giclas Western Growers 0162.1

Victor Lilley Berry Tyme Farms 0166

Kirk Hunter Turfgrass Producers International 0168.1

Stephen E. Payne Pet Food Institute 0170

Dan Legard CA Strawberry Commission 0171

James W. Wells Environmental Solutions Group LLC 0172

David Doniger Natural Resources Defense Council 0173

Steve Hensley USA Rice 0175

Eleven commenters are concerned that the petition process would be unable to meet the needs of 

critical users of methyl bromide and that EPA is not capable of reviewing and responding the 

petitions quickly enough to address the real time needs of the industry. [5, 0158.1, 0161.1, 

0159.1, 0160.1, 0162.1, 0166, 0168.1, 0170, 0171, 0172, 0175] 

− Nine commenters are concerned that the petition process is too complex [0158.1, 0161.1, 

0159.1, 0160.1, 0162.1, 0166, 0168.1, 0170, 0175, 0172]. Eight commenters feel that the 

process is too complex because users must identify and coordinate between a distributor 

that holds CSAs without a corresponding quantity of pre-phaseout methyl bromide and a 

producer/importer. [0158.1, 0161.1, 0159.1, 0160.1, 0162.1, 0166, 0168.1, 0170, 0175]
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− One commenter believes methyl bromide manufacturers could not make additional 

deliveries in the narrow period of time in which fumigation is required in California 

strawberry fruit production. [0171]

− Nine commenters believe that the petition process places an unreasonable burden on users. 

[0158.1, 0161.1, 0159.1, 0160.1, 0162.1, 0166, 0168.1, 0170, 0172, 0175] Eight 

commenters state that this is because the process requires users to identify and get 

cooperation from a producer/importer to complete the exchange and also to obtain 

documentation from both the distributor and producer. [0158.1, 0161.1, 0159.1, 0160.1, 

0162.1, 0166, 0168.1, 0170, 0175]

− Eight commenters believe that the only reason that the petition process is needed is 

because EPA has proposed to allocate a lower quantity of methyl bromide from new 

production/ imports than the quantity that was authorized by the Parties. The commenters 

urge EPA to allocate the full amount of new production/ imports authorized and eliminate 

the petition procedure.

These commenters believe the review period (30 working days) proposed by EPA is too 

long. Since exchanges cannot occur during a petition review, it may be too late for a user 

to effectively treat the application that was granted a critical use exemption. The 

commenters believe that the review period should be significantly shortened and that the 

procedure should include a mechanism by which petitions are automatically granted if 

EPA fails to make a decision by the review deadline.

These commenters are also concerned that the petition process has no deadline for EPA to 

inform a petitioner as to whether his/her petition is actually complete. The commenters 

feel that the procedure should require EPA to make a determination of completeness 

within 7 working days of its receipt of a petition. 

These commenters also find the rule unclear as to how EPA will be able to determine 

whether the amount of methyl bromide needed under a petition can be supplied from 

stocks or new material held by other distributors. These commenters are concerned that 

supplies of methyl bromide cannot be easily shifted to meet user needs regardless of 

geographic location. These commenters are concerned that if local distributors and 

applicators are unable to meet the needs of users, distributors and applicators from outside 

the area may be unwilling to provide their services. This unwillingness may be because 

the costs of shipping methyl bromide to the user’s location may be too expensive or it may 

not be feasible to move equipment to the location of the user. Additionally, the 

commenters note that state registration requirement may prohibit the movement of 

registered methyl bromide from one state to another and that each product may not be 

registered for all possible uses. The commenters also believe that the petition process 

incorrectly assumes that supplies of new methyl bromide can be readily obtained once a 

petition is approved, which may not be the case in new quantities must be produced or 

imported. [0158.1, 0161.1, 0159.1, 0160.1, 0162.1, 0166, 0168.1, 0170, 0175]

− Eight commenters are concerned that the proposed petition process will not be available 

after October 1, 2006. Therefore, exchange transaction will not be available in the 4th

quarter, which is when the material is most likely needed. [0158.1, 0161.1, 0159.1, 

0160.1, 0162.1, 0166, 0168.1, 0170, 0175] 
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− One commenter believes that there are other methods to ensure ample stockpile of methyl 

bromide, and that no company plans for a shortage or emergency need so sufficient 

quantities should be guaranteed throughout the year. [0170]

One commenter agrees with the petitioning mechanism proposed by EPA, but believes that it is 

unlikely that stocks will become unavailable. [0157.1]

One commenter objects to the proposed petition process, asserting that EPA has not provided 

any justification for the need for a petition process that could result in the expansion of 

production and import back to the 30% upper limit and that the process is unnecessary. In 

addition, this commenter feels that the petition process is arbitrary because any possible 

shortage of stocks for critical users could only result from EPA’s refusal to bar non-critical 

users from accessing methyl bromide stocks and to bar critical users from double-dipping into 

those stocks. [0173]

Response: EPA addressed the above comments in the preamble, and has withdrawn the 

Information Collection Request (ICR) for the proposed petition process. 

4. Summary of Comments Relating to CRITICAL USE ALLOWANCE 

ALLOCATIONS

4.a. Total Levels of Exempted Production/Import for Critical Uses

Commenter Organization Document ID Number

William Murray American Forest & Paper Association 1

Susan Lewis Methyl Bromide Industry Panel of the 

American Chemistry Council

0158.1, 0161.1

Dennis Balint CA Walnut Commission 0159.1

Mark Reddick Reddick Fumigants 0160.1

Henry L. Giclas Western Growers 0162.1

Justin Brown Golden State Bulb Growers 0163.1

Victor Lilley Berry Tyme Farms 0166

Kirk Hunter Turfgrass Producers International 0168.1

Stephen E. Payne Pet Food Institute 0170

Gene Harrington NPMA 0174

Steve Hensley USA Rice 0175

Nine commenters find EPA’s decision to reduce critical use levels below what was approved by 

MBTOC arbitrary and urge EPA to revert the approved CUE amounts back to those levels 

granted by MBTOC. [0158.1, 0161.1, 0159.1, 0160.1, 0162.1, 0163.1, 0166, 0168.1, 0170, 

0175]. Eight commenters find EPA’s proposal inconsistent with the terms of the relevant 

Decisions of the Parties; they find nothing in Decision XVI/2 and Ex. II/1 to suggest that the 

amount authorized for new production/ imports by the Parties to the Montreal Protocol (7,658 

MT) should be adjusted downward. [0158.1, 0161.1, 0159.1, 0160.1, 0162.1, 0166, 0168.1, 

0170, 0175]

Eight commenters believe that there is an error in the allocated CUAs set forth in 82.8(c). The 

amount attributed to Albemarle and Ameribrom is listed as “129,934 kilograms.” The 
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commenters state that this may be a duplication error and that the correct allocation should be 

71,778 kilograms. Additionally, the corresponding total for post-harvest CUAs should be 

519,910 kilograms. [0158.1, 0161.1, 0159.1, 0160.1, 0162.1, 0166, 0168.1, 0170, 0175]

One commenter questions how EPA arrived at the 519,910 kg figure in the 2006 CUA postharvest table on p.62044 and p.62049. The commenter notes that on p.62040, EPA states that 

for “the post-harvest sectors, the reduction would be from an authorized amount of 707,746 

kilograms to an amount of 601,584 kilograms,” and finds it unclear how or why an additional 

80,000 kg were cut from post-harvest uses. [0174]

One commenter finds the total amount of exempted production/import for critical uses in 2006 

appropriate, but believes that EPA should assure that only approved critical users will have 

access to CUE methyl bromide by perhaps placing responsibility for compliance on 

distributors within those non-critical sectors. [1]

One commenter is concerned that the amount of new production allocated for pre-plant uses in 

2006 was reduced by 2 million pounds from the 2005 allocation despite the absence of newly 

registered soil alternatives. [0162.1]

Response: EPA has addressed the above comments in the Preamble. 

4.b. Allocation of CUAs into Sector Specific Groupings versus Pre-Plant and PostHarvest Groupings

Commenter Organization Document ID Number

William Murray American Forest & Paper Association 1

Dow Dow AgroSciences 0157.1

 One commenter supports the allocation of CUAs to the same two groupings (pre-plant and 

post-harvest) because critical users need as much clarity as possible on what to expect and as 

much consistency from year to year as possible. [1]

 One commenter believes that CSAs and CUAs should be allocated specifically to each of the 

critical use categories authorized by the Parties, keeping with Decision XVI/2 and ExII./1 

which specify that “each party should endeavor to allocate the quantities of MB 

recommended by the Technical and Economic Assessment Panel as listed in annex II...” The 

commenter cites the following reasons in support of a use-specific system. [0157.1] 

− A use-specific allocation system would provide petitioners for methyl bromide allocations 

assured access to methyl bromide. The “lump sum” approach currently implemented in 

the U.S. does not guarantee petitioners with approved CUEs access to methyl bromide. 

− The lump sum approach delays the transition to alternatives by preventing the U.S. 

government from withholding excessive methyl bromide from uses that have successfully 

begun transitioning to alternatives. 
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− The U.S. open market system for methyl bromide allocation is an economic disincentive 

for anyone developing alternatives because there is no assurance that methyl bromide will 

eventually exit a particular use segment. This is especially true since alternatives are 

generally more use-specific than methyl bromide. 

− A use-specific allocation ensures that those users approved by the Parties as having 

legitimate critical needs are actually the users who have access to and consume the methyl 

bromide.

− The lump sum approach does not provide incentives to those users with viable alternatives 

or guarantee access to those users that actually qualify. Instead, it allows a limited supply 

of methyl bromide to users willing to pay the highest prices.

In the absence of a use-specific allocation system, this commenter supports the current system 

that differentiates between pre-plant and post-harvest uses. This commenter believes that the 

availability of methyl bromide across use categories would be a disincentive to developers 

and producers of methyl bromide alternatives because a methyl bromide alternative is rarely 

useful for both pre-plant and post-harvest uses and because the development of alternatives 

requires a substantial financial investment. For example, if methyl bromide that has been 

approved for pre-plant uses were available for post-harvest uses, it would be a disincentive for 

the development of post-harvest alternatives. [0157.1]

Response: EPA has addressed the above comments in the Preamble. 

5. Summary of Comments Relating to CRITICAL STOCK ALLOWANCE 

ALLOCATIONS

Commenter Organization Document ID Number

Dow Dow AgroSciences 0157.1

David Doniger Natural Resources Defense Council 0173

 One commenter believes that EPA’s 2005 rule, which is proposed to be carried forward 

unchanged, correctly restricts critical users’ access to stocks. [0173]

 Two commenters believe that stockpiled methyl bromide should not be accessed by those 

users without approved critical needs. One commenter notes that potential users should be 

required to participate in the U.S. and Montreal Protocol critical use exemption processes; 

without this requirement, users who have not participated in the process would have an 

advantage and easy access to methyl bromide over those who have followed the process. 

Another commenter believes that this ruling is in violation of the Protocol, the Decision of 

the Parties, and the Clean Air Act. [0157.1, 0173]

Response: EPA has addressed these comments in the Preamble, as well as in the Response to 

Comment document for the Framework rule. 
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6. Summary of Comments Relating to CLARIFICATIONS TO THE 

FRAMEWORK RULE

Commenter Organization Document ID Number

Susan Lewis Methyl Bromide Industry Panel of the 

American Chemistry Council

0158.1, 0161.1

Dennis Balint CA Walnut Commission 0159.1

Mark Reddick Reddick Fumigants 0160.1

Henry Giclas Western Growers 0162.1

Victor Lilley Berry Tyme Farms 0166

Kirk Hunter Turfgrass Producers International 0168.1

Stephen E. Payne Pet Food Institute 0170

David Doniger Natural Resources Defense Council 0173

Steve Hensley USA Rice 0175

One commenter states that, in violation of the Protocol, the Decisions of the Parties, and the 

Clean Air Act, EPA’s 2005 rules allow approved critical users to double-dip. The commenter 

notes that, according to the rules, a user may not apply unrestricted methyl bromide stocks to 

the “same” field or structure in the same year. The commenter states, however, that the rules 

can be evaded by dividing fields or structures that really are under common ownership into an 

“A” and “B” group, where critical use methyl bromide is applied to the “A” field or structure 

and other stocks to the “B” field or structure, in order to obtain more methyl bromide than 

was approved for that user. The commenter believes that the proposed changes to 40 C.F.R 

82.4(p)(2)(vi) and 82.12(dd) expand the opportunity for evading the law and request that the 

proposed changes be abandoned and the corrective rules be issued. [0173]

Eight commenters discuss EPA’s proposal to clarify the language of two existing regulatory 

provisions. The proposed amendments will add the phrase, “(b) becomes an approved critical 

use as a result of rulemaking” to the end of Section 82.4(p)(2)(iv) and remove the word 

“purchase” from Section 82.13(dd). The commenters support EPA’s proposal to amend 

Section 82.4(p)(2)(vi) to ensure that users that become approved critical users after 

supplemental rulemaking would not be penalized for having used non-critical use methyl 

bromide prior to their approval. However, the commenters do not support EPA’s proposal to 

amend Section 82.13 and believes the current regulatory text should be retained. The 

commenters do not believe EPA has provided a clear explanation of why this change is 

necessary and is concerned that the amendment would prevent users to utilize unused methyl 

bromide from previous control periods. The commenters also believe conflicts with proposed 

revisions to Section 82.4 (p)(2)(vi).

In addition, the commenters also believe there is confusion concerning Section 82.4 (p)(2)(vi). 

The pertinent text of EPA’s proposed amendment that is referenced by the commenters is 

provided below:

“No person who purchases critical use methyl bromide during the control 

period shall use that methyl bromide on a field or structure for which that 

person has used non-critical use methyl bromide, purchased during the same 

control period, for the same use....” 
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The commenters state that they are confused because this text is not included in the Proposed 

Ruling and differs from the language proposed in the August 30, 2005 notice for the 

supplemental 2005 rule. But, the commenters support the amendment proposed above and 

believes it would reconcile Section 82.4 (p)(2)(vi) with Section 82.13 (dd). [0158.1, 0161.1, 

0159.1, 0160.1, 0162.1, 0166, 0168.1, 0170, 0175]

Response: EPA has addressed the above comments in the Preamble. 

7. Summary of Comments Relating to RULEMAKING AND THE 

REGULATORY PROCESS

Commenter Organization Document ID Number

E. Barclay Poling SE Strawberry Consortium 9

Sean Duffy Steamboat Association of Louisiana 10

Dow Dow AgroSciences 0157.1

Dennis Balint CA Walnut Commission 0159.1

Barry Bidwell CA Grape and Tree Fruit League 0165, 0167.1

Victor Lilley Berry Tyme Farms 0166

Kirk Hunter Turfgrass Producers International 0168.1

Stephen E. Payne Pet Food Institute 0170

David Doniger Natural Resources Defense Council 0173

Gene Harrington NPMA 0174

Steve Hensley USA Rice 0175

Eight commenters express concern that late publication of the proposed rule did not allow for 

adequate consideration and time for commenting. Additionally they are concerned that the 

rule may not be finalized until the end of 2005, which would give critical users no access to 

methyl bromide at the beginning of 2006. [9, 0159.1, 0165, 0167.1, 0166, 0168.1, 0170, 0174, 

0175]

One commenter requests EPA to explain how the CUE has been affected with the enforcement 

of ISPM 15. [10]

 One commenter feels that the proposed rule is legally flawed because it fails to demonstrate 

the “market disruption” finding required by Decisions IX/6, XVI/2, and Ex. II/1. [0173] The 

commenter provides the following arguments to support its assertion that EPA lacks 

information that supports the “market disruption” finding:

− EPA has failed to provide meaningful support of the claim in the proposed rule that there 

is “the potential for a significant market disruption if methyl bromide were not available 

for the uses proposed for 2006.”

− EPA does not define “market disruption” or explain its meaning.

− EPA makes no attempt to analyze the markets for commodities or other applications it has 

granted a critical use in the proposed ruling. Instead, EPA has made broad assertions such 

as, the use of methyl bromide alternatives could cause “planting delays” and, in turn, 

“unpredictable but potentially significant economic effects..., which will disrupt the 

delivery of [the product] to wholesale buyers.” (Excerpt from CUN for Preplant Soil Use 

for Peppers Grown in Open Fields on Plastic Tarpaulins)
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− It is impossible to demonstrate that there is a “significant market disruption” that can be 

recognized legally, when the claimed critical use need is higher than total usage in recent 

years. [0173]

 To comply with the Montreal Protocol, and specifically Decision IX/6, one commenter is of 

the opinion that the proposed rule and the framework rule should be amended in the 

following ways: [0157.1]

− All available information at the time of allocation should be utilized, including new 

information that becomes available after the approval of critical use methyl bromide by 

UNEP, in order to reduce U.S. reliance on methyl bromide.

− Incentives should be provided to encourage methyl bromide users to utilize alternatives. 

The commenter believes that through the current CUE allocation process, methyl bromide 

users may avoid demonstrating success with alternatives or portray a lack of “feasibility” 

of alternatives to optimize their allocation. 

− Incentives should be provided for private industry to develop alternatives.

− The rules should require that all existing stocks of methyl bromide are utilized prior to 

authorizing new volumes.

− Key terms such as “technical feasibility,” “economic feasibility,” and “significant market 

disruption” should be defined so that methyl bromide consumers and producers can better 

understand the basis for the CUE decision making process. This commenter expresses 

reluctance to continue investment in the development of methyl bromide alternatives 

without a detailed understanding of these terms and transparency in the critical use 

allocation processing. For example, the commenter notes that it has provided information 

demonstrating that use of ProFume as a substitute to methyl bromide in wheat milling 

fumigations results in a less than 0.1¢ increase in price per pound of flour produced in 

these mills. The commenter does not believe that this increase represents either 

“economic infeasibility” or results in a “significant market disruption,” but suggests that, 

until these terms are more clearly defined, methyl bromide users can continue to claim 

that this 0.1¢ price increase is a significant market disruption. [0157.1] 

Response: Many of the above comments are suggestions for changes to the Framework Rule 

and are outside the scope of the proposal. EPA has nevertheless addressed some of the above 

comments in the Preamble.