2010 Methyl Bromide CUE NPRM Comment Summary p.1 

## SUMMARY OF 

## PUBLIC 

## COMMENTS FOR
THE 

## NOTICE OF 

## PROPOSED 

## RULEMAKING 

## : THE 

## 2010 CRITICAL 

## USE 

## EXEMPTION FROM THE 

## PHASEOUT
OF 

## METHYL 

## B ROMIDE

1. SUMMARY OF COMMENTS ON RULEMAKING PROCESS..................................................................2

2. SUMMARY OF COMMENTS ON PROPOSED LIST OF CRITICAL USES AND LIMITING CRITICAL CONDITIONS.........................................................................................................................................3

3. SUMMARY OF COMMENTS ON TOTAL AMOUNTS OF CRITICAL USE METHYL BROMIDE AND LEVELS OF EXEMPTED NEW PRODUCTION AND IMPORT ..............................................................7

4. SUMMARY OF COMMENTS ON THE AMOUNT TO BE SOLD FROM PRE-PHASEOUT INVENTORY.............................................................................................................................................................10

5. SUMMARY OF COMMENTS ON THE SUPPLY CHAIN FACTOR ......................................................13

6. SUMMARY OF COMMENTS ON TREATMENT OF CARRY-OVER AMOUNTS..............................14

7. SUMMARY OF COMMENTS ON AMOUNTS FOR RESEARCH PURPOSES.....................................14

8. SUMMARY OF COMMENTS ON ALTERNATIVES TO METHYL BROMIDE..................................15

8.A S ULFURYL FLUORIDE ................................................................................................................................16 8.B IODOMETHANE ..........................................................................................................................................18 8.C MARKET S TATUS OF TELONE ....................................................................................................................19 8.D OTHER COMMENTS ON THE TRANSITION TO ALTERNATIVES : ...................................................................19

9. SUMMARY OF COMMENTS ON EMISSIONS MINIMIZATION .........................................................20

10. SUMMARY OF COMMENTS ON ALLOCATION METHODOLOGY .............................................202010 Methyl Bromide CUE NPRM Comment Summary p.2 Note: In addition to the comments summarized below, the Methyl Bromide Industry Panel (MBIP) and the Natural Resources Defense Council (NRDC) incorporated by reference comments from previous rulemakings (Critical Use Exemption From the Phaseout of Methyl Bromide, 2005-2009) and reasserted all comments and legal arguments to the extent applicable. Responses to Comments from previous CUE rulemakings are also available in the docket for this rule.



## 1. Summary of Comments on Rulemaking Process

Commenter Organization Document ID No B. Houtman Dow AgroSciences 0033 Tracy Heinzman Wiley Rein LLP, Representing Methyl Bromide Industry Panel (MBIP) 0035

 Suggested Modifications to Rulemaking Process: Dow AgroSciences urged EPA to make the following modifications to the allocation framework in order to be Montreal Protocol compliant: minimize U.S. use and production of methyl bromide by utilizing all information at time of allocation; provide incentives for use and development of methyl bromide alternatives; require existing stocks and amounts left over from 2008 be utilized prior to authorizing new production; and define key terms at the domestic level. Dow commented that EPA has still not proposed an adequate mechanism for use of new information that enables real-time decisions on allocation amounts. [See also comments under Sections 2, 3, and 4 of this document.] [0033]

The Agency utilizes all information available at the time of both nomination and allocation. The rulemaking process is an adequate tool for receiving new information on alternatives and other data that allow the Agency to make real-time decisions on allocation amounts. For example, in the 2009 CUE Rule, EPA adjusted the allocation based on the availability of alternatives like iodomethane and 1,3-D. EPA has made similar adjustments for iodomethane and sulfuryl fluoride in previous years. In addition, EPA provides incentives for the use and development of methyl bromide alternatives by reducing the amount of methyl bromide nominated and allocated each year, deducts critical use amounts left over from previous years (referred to as “carryover”), from new production and has defined key terms in the past, for example, in the Framework Rule included in this docket. Other terms were discussed in a technical support memo titled “Development of 2003 Nomination for a Critical Use Exemption for Methyl Bromide from the United States of America,” prepared in conjunction with the Framework Rule. EPA has addressed comments requesting that the Agency require existing critical use stocks to be utilized before authorizing new production in previous response to comments documents, which are included in the docket for this action.

 Support for Existing Regulatory Framework: MBIP noted general support for EPA’s use of the existing regulatory framework for implementation of the 2010 critical use exemptions, which provides consistency in implementation and minimization of regulatory burdens on stakeholders. [0035] EPA is not finalizing the proposed modification to the existing framework which would have ensured that the level of new production and import does not increase from one year to the next.2010 Methyl Bromide CUE NPRM Comment Summary p.3 Rather, EPA is using the existing regulatory framework for calculating new production and CSA amounts. This is discussed in more detail in Section V.D.3 of the preamble of the final rule. Though not being implemented in this rule, EPA may consider that modification in future CUE rulemakings.

 Support for Quick Rulemaking: MBIP commented that there does not appear to be enough time to promulgate the final rule before January 1, 2010, with potential negative consequences for spring planting applications. Thus, MBIP urged EPA to move as quickly as possible to promulgate the final rule for planning purposes, and to issue the “no action assurance” requested by MBIP on December 14, 2009. [0035] Recognizing that EPA was unable to issue a final allocation by the end of 2009, the Agency stated through a “no-action assurance letter” that it will exercise its enforcement discretion to allow companies identified in the proposed rule as holders of critical use allowances or critical stock allowances for 2010, to produce, import, or use methyl bromide for the specified critical uses proposed for 2010 until May 1, 2010, or until the final rule is published, whichever is sooner, in amounts not to exceed the allowance allocations identified in the proposed rule.



## 2. Summary of Comments on Proposed List of Critical Uses and Limiting Critical Conditions

Commenter Organization Document ID No Jean Public 0016 B. Houtman Dow AgroSciences 0033

 Proposed Critical Uses Are Not Critical: One commenter commented that industry has not expended sufficient effort to find alternatives and that the proposed critical uses are not actually “critical.” [0016]

For the reasons discussed in the Critical Use Nominations for 2010, EPA believes these uses to meet the criteria for “critical” in Decision IX/6 and EPA regulations. In addition, these uses have been approved by the Parties to the Montreal Protocol as “critical.”

 Suggested Modifications to Critical Uses and Application of Limiting Critical Conditions: Dow AgroSciences noted support for EPA’s goal of limiting methyl bromide allocation to the amount critical for U.S. agriculture, but expressed concern that there were several places in the NPRM where the proposed limiting critical conditions do not take into account the utility and availability of alternatives. Dow commented that the limiting conditions need to be redefined more accurately and to accommodate relevant circumstances that may have changed. Dow noted the following:

- First, Dow noted that key terms—including “technical feasibility,” “economic feasibility,” and “significant market disruption”—have not been defined in the U.S., and suggested that Canadian definitions of these terms be adopted for guidance.

- Second, Dow requested that methyl bromide critical users be required to provide documentation validating their “reasonable expectation” that a limiting critical condition2010 Methyl Bromide CUE NPRM Comment Summary p.4 could occur. In some cases, this might be a one-time event, and in other cases, documentation might be required from year-to-year.

- Third, Dow stated that “time to transition” is referenced in many of the limiting critical conditions, but that once the feasibility of alternatives has been demonstrated and part of the market transitioned, the “time to transition” should be quick. Dow further stated that the assumed slow annual rate of uptake of 15% does not reflect the market’s real ability to transition to alternatives, such as in rice milling operations where a large percentage utilize ProFume.

- Fourth, Dow made a number of comments related to the limiting critical conditions for pre-plant uses:

 Dow stated that the 2007 EPA assessment of karst impact does not realistically reflect 1,3-D product label restrictions. Dow AgroSciences cited two studies that indicate that restrictions on production use related to occupied structures or karst surface features within 100 feet or less should have an agricultural impact of 1% to 5.5%, as compared to the 93% assessed by the EPA. Dow also stated that the 2007 U.S. government assessment of the “soils” restriction overestimates the impact because non-agricultural lands are considered. Dow requested that EPA conduct a site-specific re-evaluation of the pre-plant critical uses to reflect the actual impact of the refined 1,3-D karst restrictions.

 Dow commented that “moderate to severe yellow or purple nutsedge infestation” should not be listed as a limiting critical condition in all pre-plant use situations because many effective alternatives exist, such as Sandea®, Envok®, Dual® Magnum, Treflan®, Devrinol®, and high barrier mulch films. Dow stated that yellow and purple nutsedge should only qualify as a limiting condition when end users can demonstrate that other alternatives are not viable for their fields. Dow provided EPA with additional data on nutsedge control agents that it requested be used for updating the limits of this limiting condition and the 2010 allocations.

 Dow noted that “moderate to severe nematode infestation” should not be listed as a critical use because 1,3-D has been available as a viable alternative for the past 40 years. Dow provided EPA with additional data on nematode control agents that it requested be used for updating the limits of this limiting condition and the 2010 allocations.

 Dow commented that “moderate to severe fungal disease infestation” should not be listed as a critical use in all situations, since alternatives, such as chloropicrin and 1,3-D are proven viable alternatives. Dow provided EPA with additional data on 1,3-D and chloropicrin that it requested be used for updating the limits of this limiting condition and the 2010 allocations.

 Dow stated that township limits should only be a limiting critical condition when the limit is met for a particular township/range, which can be tracked in real-time. Dow further commented that in reality, many township limits exceed what was reported in the TEAP Report and limits have been rarely exceeded since 1995.

- Fifth, Dow made a number of comments related to the limiting critical conditions for post-harvest uses:

 Dow stated that ProFume is a proven technical and economically viable alternative to methyl bromide in post-harvest and structural fumigation use patterns. As such, the proposed limiting critical condition for methyl bromide use2010 Methyl Bromide CUE NPRM Comment Summary p.5 on electronic equipment and for rapid fumigation of walnuts, beans, dried plums, and pistachios should be removed.

 Dow noted that it is providing new information on sulfuryl fluoride to the Agency. Dow suggested that methyl bromide displacement be changed to 15% from the proposed 12% upon re-evaluation of alternatives. In addition, Dow commented that methyl bromide users requesting an allocation should be required to submit an estimated timeline of their transition to alternatives and the conditions necessary to meet the timeline. [See also comments in Section 8 of this document] [0033]

EPA has responded to many of these comments in previous rules; for example, see the Reponses to Comments for the 2008 and 2009 CUE Rules and the document “Development of 2003 Nomination for a Critical Use Exemption for Methyl Bromide from the United States of America,” all of which are included in the docket for this rulemaking. EPA has not found it necessary to codify regulatory definitions for certain terms like “technical feasibility,” “economic feasibility,” and “significant market disruption.” However, previous CUE rules and response to comments documents do provide guidance for stakeholders.

Regarding the comment that critical users be required to provide documentation validating their “reasonable expectation” that a limiting critical condition could occur, EPA responds that this would require changing the definition of an approved critical user (see 40 CFR 82.3). Included in the definition of an approved critical user is that “the person reasonably expects that the area will be subject to a limiting critical condition during the applicable control period.” The added requirement that growers prove they face a limiting critical condition would impose a large burden on end users without providing an environmental benefit. The end user must certify upon purchasing critical use methyl bromide that their use meets the definition of critical use. In addition, EPA has sought to minimize the burden on individual growers by placing the reporting and recordkeeping requirements upon distributors rather than the end users themselves.

Regarding the comment on EPA’s assessment of karst impact, EPA responds that the Agency has received information on karst topography from a number of sources including Dow AgroSciences. Based on the available information, an estimate was made on the impact of karst topography on a state level. The registration of MidasTM (iodomethane plus chloropicrin) has led to further reductions in the amount of methyl bromide requested under the CUE process because of the determination that MidasTM can be used in areas of karst topography.

Regarding the comment that EPA’s annual transition rate of 15% does not reflect the market’s actual ability to transition to alternatives such as sulfuryl fluoride, EPA responds that while many post-harvest users submitted comment expressing support for sulfuryl fluoride as an efficacious fumigant, the Agency does not yet have the economic data to support a faster transition rate in 2010 than was contained in the CUN. Therefore, EPA is not reducing new production of methyl bromide to account for the adoption of sulfuryl fluoride in the post-harvest sector.

The commenter states that “moderate to severe yellow or purple nutsedge infestation” should not be a limiting critical condition in all situations. The commenter provides examples of alternatives that can be used on certain critical use crops in lieu of methyl bromide. Specifically2010 Methyl Bromide CUE NPRM Comment Summary p.6 the commenter notes the ability of halosulfuron methyl (Sandea ) for use on tomatoes and certain curcurbits, trifloxysulfuron-sodium (Envoke ) on tomatoes, s-metolachlor (Dual Magnum) for use on peppers, and others that can be used in conjunction with 1,3-D to control nutsedge. The commenter suggests that yellow and purple nutsedge be a limiting critical condition only when such products are not viable for nutsedge control on their particular fields. As the 2010 CUN explains, research results confirm that methyl bromide alternatives provide inconsistent control of nutsedge weed species. Nutsedge is an extremely competitive weed in tomato fields and can cause significant yield losses in the Southeast. None of the alternatives recommended by the Methyl Bromide Technical Options Committee (MBTOC) provide sufficient nutsedge control at moderate-to-severe infestation rates in the mid-Atlantic and Southeastern U.S. The exception is iodomethane, which EPA has accounted for in the nomination. In addition, unlike methyl bromide fumigations, studies have demonstrated that preemergence herbicides do not provide season-long or multiple-season control of sedge species. Therefore, EPA believes that methyl bromide fumigations are still necessary for areas of high weed pressure.

The commenter states that “moderate to severe nematode infestation” or “moderate to severe fungal disease infestation” should not be limiting critical conditions in all situations as 1,3-D has been shown to be effective against those infestations. The commenter provided additional data regarding the efficacy of 1,3-D and chloropicrin for nematode and disease control. The 2009 CUN explains that 1,3-D is effective against nematodes, but 1,3-D is not a feasible alternative for many growers. For example, the 2010 CUN states that approximately 40% of Florida tomato land has karst geology, which precludes the use of 1,3-D because of groundwater contamination that could result. For many growers that cannot use 1,3-D, nematode infestation is a condition for which methyl bromide is the only feasible treatment option. Therefore, nematode infestation remains a legitimate limiting critical condition for many growers. As discussed more below, EPA has adjusted pre-plant critical use exemption amounts to account for the fact that 1,3-D is often a feasible alternative for land without karst geology. As a result, EPA assumes that market forces will dictate that critical use methyl bromide will not be used against nematodes for growers that can use 1,3-D instead.

The commenter states that California township limits on 1,3-D only become limiting if/when the 1,3-D allocation limit for a township has been met for the year. The commenter states that California tracks the amount and location of 1,3-D use and that EPA should use that data to determine whether a particular township limit has been met. EPA continues to support listing township caps as a relevant limiting critical condition for California crops. EPA is aware that this is a fluid rather than static situation and the availability of 1,3-D is contingent on other fumigation decisions made in these townships. There are many examples, such as sweet potato slip production, where township caps demand serious consideration. Given the preference of producers of sweet potato slips for 1,3-D, if it is available, any methyl bromide will go unused if possible. In Merced County, California, there is an especially high concentration of crops that require fumigation, particularly almonds, nectarines, peaches, and grapes. The above factors make predicting the availability of 1,3-D for sweet potato transplant production very difficult. Nevertheless, EPA 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 been exceeded.2010 Methyl Bromide CUE NPRM Comment Summary p.7 The commenter states that the “presence of sensitive electronic equipment subject to corrosion” should no longer be a limiting critical condition. This critical condition was due to the corrosive properties of phosphine, and precluded its use as an alternative to methyl bromide. The commenter states that sulfuryl fluoride can be used in place of phosphene and thus this limiting critical condition is no longer relevant. As discussed in the 2010 CUN, research is still ongoing regarding the efficacy of sulfuryl fluoride for the postharvest critical uses listed in Table I of the preamble, and EPA must ensure that postharvest sectors have sufficient time to validate and adopt the new technology. Therefore, the presence of sensitive electronic equipment remains a proper limiting critical condition for critical use applications that would otherwise use phosphine, which corrodes electronic equipment.

The commenter also states that “rapid fumigation required to meet a critical market window, such as during the holiday season” should not be a limiting critical condition as sulfuryl fluoride is capable of performing rapid fumigation to the same extent as methyl bromide. The United States Department of Agriculture (USDA) Agriculture Research Service (ARS) is currently conducting research on the efficacy and practicality of using alternative fumigants, including sulfuryl fluoride, to control post-harvest pests of durable commodities such as nuts and dried fruit. While acknowledging that sulfuryl fluoride appears to have the potential to provide effective and rapid vacuum fumigation of nuts and dried fruit, the Agency must ensure that the tree nut and dried fruit industry has sufficient time to validate and adopt the new technology. In addition, data is not available on the effectiveness of sulfuryl fluoride on all insects (especially insect eggs) at low temperatures under field conditions, when commodities are typically fumigated. Therefore, rapid fumigation remains a valid limiting critical condition for the sectors where it is listed in Table I of the preamble.



## 3. Summary of Comments on Total Amounts of Critical Use Methyl Bromide and Levels of Exempted New Production and Import

Commenter Organization Document ID No T. Martell 0017 B. Gray 0018 David Doniger Natural Resources Defense Council (NRDC) 0032 B. Houtman Dow AgroSciences 0033 Tracy Heinzman Wiley Rein LLP, Representing Methyl Bromide Industry Panel (MBIP) 0035

 Amount of Critical Use Material from New Production Should be Increased: MBIP urged EPA to authorize 2,981,865 kg of new production in order, they claim, to be consistent with the Agency’s established policy for determining allocation amounts. MBIP noted that although this methodology yields a level of new production that is greater than the amount authorized by the Parties, the Parties’ post-ratification decisions are not legally binding on EPA and should rather serve as guidance. MBIP also stated that EPA would be taking arbitrary and capricious action by requiring 690,464 kg of critical use material to come from2010 Methyl Bromide CUE NPRM Comment Summary p.8 pre-phaseout stocks, since EPA over-allocated CSAs in the 2009 rule resulting in a negative reserve [see also MBIP comments under section 4 of this document].

Citing language from 72 Fed. Reg. 48,956, indicating that EPA would propose the maximum amount of new production authorized by the Parties if the amount of available stocks was less than the difference between the total authorization by the Parties and the amount of new production and import authorized by the Parties, MBIP commented that this situation has now occurred and that at a minimum, EPA should thus authorize CUAs for new production equal to the minimum amount allowed under Decision XX/5, minus the carryover.

Further, MBIP commented that EPA’s decision to cap new production at the level authorized in the previous control period is unlawful. MBIP disagreed that the 2010 rulemaking presents the Agency with a new circumstance, since it was foreseeable that the amount of CUAs granted might have to increase from year to year if stocks became insufficient. MBIP also disagreed that EPA can justify its switch in position on the basis of Agency discretion since the Agency did not follow its established procedure for determining CUAs. In addition, MBIP noted that prior to this rulemaking, EPA never stated that new production for critical uses should not increase from year to year as a matter of policy. As such, the NPRM violates the requirement that an Agency provide a reasonable explanation and basis for the exercise of its discretion. [0035]

EPA disagrees with MBIP’s suggestion that EPA allocate 2,981,865 kg in new production in order to be consistent with the Agency’s established procedure for determining allocation amounts. First, this recommendation is based on a misapplication of EPA’s calculation. Second, it is based on an estimate of drawdown, which EPA has replaced in the final rule with actual data. As discussed elsewhere, this actual data changes the calculation such that the proposed modification to the framework for calculating the allocation is no longer necessary. EPA is not responding to the commenter’s observations on Decisions by the Parties at this time because the actual data on amounts of methyl bromide held in inventory, together with the application of EPA’s pre-existing available stocks approach, results in a new production number that is less than the amount authorized by the Parties. EPA will take these comments into account if it adopts the proposed modification in a subsequent action.

First, the commenter calculates their recommended allocation amount by subtracting “available stocks” from the total U.S. authorization not the CSA amount. These have typically been the same in past years, but given the approach contained in the proposed rule, the CSA amount was 690,464 kg whereas “available stocks” was zero. Not subtracting the CSA amount results in a new production value that is 216,391 kg more than the amount of new production authorized by the Parties.

Second, EPA is not finalizing the approach discussed in the proposed rule that would ensure that the level of new production and import does not increase from one year to the next because reported year-end inventory data show that EPA can apply the existing framework and not increase the amount of new production compared to 2009. EPA has recalculated “availablestocks” using end-of-year inventory data rather than using an estimate of drawdown. The prephaseout inventory on December 31, 2009, is double what the Agency calculated in the proposed2010 Methyl Bromide CUE NPRM Comment Summary p.9 rule (3,064 MT compared to 1,437 MT). As a result, EPA now calculates that 1,028,108 kg of pre-phaseout inventory would be “available stocks.” In this final rule, EPA is applying its existing framework to determining CSAs and CUAs and is not adopting the approach limiting new production that was discussed in the proposed rule. EPA is not deciding whether or not a policy limiting new production would be appropriate in some future year because the situation prompting its use no longer exists for this rule.

 Four commenters indicated their support of the proposed critical use exemptions for 2010, with some qualifications:

- NRDC noted its support for EPA’s proposal to limit the production and import authorization to a level below the maximum approved in Decision XX/5 of the Parties to the Montreal Protocol. NRDC, however, also urged EPA to cut production and import levels even farther, commenting that NRDC objects to the deduction of a supply chain factor from the pre-phaseout stocks available. [See also comments in Section 5 of this document] [0032]

- Dow AgroSciences noted their support for EPA’s proposal to not permit year-on-year increases in new methyl bromide production amounts, and to prioritize the utilization of available stocks over new production. Further, Dow commented that no new CUAs should be proposed if critical stock allowances are available to satisfy the 2010 critical exemption needs. Dow also noted that ProFume is available to replace methyl bromide for all 2010 post-harvest uses and urged EPA to implement a Final Rule that results in a faster reduction of methyl bromide in post-harvest applications. [0033]

- One commenter noted support of the critical use exemption proposed changes, because “only more progress in the phase-out of methyl bromide will be made.” This commenter noted that because of the cheaper, less ozone-depleting, existing alternatives (iodomethane and 1,3-dichloropropene), further reduction of methyl bromide by the EPA is acceptable. [0017]

- One commenter expressed support for the changes to the rule that mean that total critical use will not increase from previous years, and urged EPA to take the exemption phaseout further in the future. This commenter also expressed support for critical use exemptions for uses in areas where limits have been placed on certain substitutes, such as 1,3-D in California for strawberry growers. This commenter cited a peer-reviewed paper, Potential Impacts of Imposing Methyl Bromide Phaseout on U.S. Strawberry Growers: a case study of a nomination for a critical use exemption under the Montreal Protocol

, which compared the costs of using of methyl bromide in the U.S. versus an alternative (including increased production costs) for strawberry growers. [0018]

The final rule limits the production and import allocation to a level below the maximum approved in Decision XX/5. EPA is not increasing the level of methyl bromide production from 2009; however, in the final rule this result follows from the simple application of the available stocks approach and does not reflect the adoption of a modification to the existing framework. In addition, EPA believes that it is appropriately managing methyl bromide stockpiles at such a level as to meet the needs of approved critical uses while also encouraging the transition to alternatives. Comments on the use of a supply chain factor are addressed in previous response to comments documents.2010 Methyl Bromide CUE NPRM Comment Summary p.10  Reduce Structural and Field CUE Amounts: NRDC requested that EPA reduce structural CUE amounts by half in 2010 and eliminate such exemptions in 2011, since sulfuryl fluoride and other chemicals and management technique mean that structural uses are no longer critical. NRDC further requested that EPA reduce field uses by at least 1,275 metric tons in 2010 and by greater amounts in 2011, to account for the increased availability of alternatives including iodomethane. [0032]

Sulfuryl fluoride is not registered for all commodities noted by NRDC. Therefore, unless a facility is essentially empty of such products, sulfuryl fluoride cannot be used in it. In addition, if temperatures are low during time of treatment, sulfuryl fluoride may or may not be effective at sterilizing the commodities. A higher amount of sulfuryl fluoride must be used, which may constitute an economic hardship to the producer. Essentially, sulfuryl fluoride is not as effective as methyl bromide at low temperatures, and insect (especially beetle) eggs tend to be more tolerant of sulfuryl fluoride.

Also, between 2009 and 2010 the U.S. Critical Use Nominations (CUNs) were reduced by 852,381 kg, and between 2010 and 2011 the CUNs were reduced by 1,178,256 kg. This was due to the transition to alternatives such as the Georgia three way mixture and iodomethane. EPA believes that these transition rates will allow an orderly and successful transition to new, more complicated alternatives. As growers gain experience with these more complicated alternatives, EPA anticipates continued transition to them. It should be noted that these alternatives are not registered in all crops, thus some sectors may not be able to complete the transition as quickly as other sectors.

 Two commenters commented that maintaining low levels of methyl bromide will favorably influence other countries:

- One commenter noted that the proposed changes to maintain levels of new production and importation of methyl bromide, i.e., removing the export of methyl bromide to countries that have banned use of sulfuryl fluoride, would influence phaseout of methyl bromide in other countries. [0017]

- One commenter expressed support for EPA’s decision to remove the section on export to countries that do not allow the use of sulfuryl fluoride since it promotes the phaseout of methyl bromide by other countries. [0018]

EPA is removing “export to countries which do not allow the use of sulfuryl fluoride” as a limiting critical condition for commodities. This limiting critical condition was established for the first time in the 2009 CUE rule as a few countries that import commodities treated with sulfuryl fluoride were still in the process of establishing maximum residue levels (MRLs) for sulfuryl fluoride. All countries to which the U.S. exports such commodities have now established MRLs. Therefore, EPA no longer believes this to be a limiting critical condition.



## 4. Summary of Comments on the Amount to Be Sold from PrePhaseout Inventory

Commenter Organization Document ID No David Doniger Natural Resources Defense Council 00322010 Methyl Bromide CUE NPRM Comment Summary p.11 (NRDC) B. Houtman Dow AgroSciences 0033 Tracy Heinzman Wiley Rein LLP, Representing Methyl Bromide Industry Panel (MBIP) 0035

 Amount of Methyl Bromide to be Sold from Pre-Phaseout Inventory Is Too Low: NRDC reiterated its demand that EPA “prohibit the use of stocks for purposes that are not critical uses.” [0032] Any action by EPA restricting non-critical users’ access to stocks under the Clean Air Act would be discretionary. Nothing in the Protocol or the Clean Air Act mandates that EPA limit drawdown from inventory for such uses. Decision Ex I/3 of the Montreal Protocol, which informs Agency actions on methyl bromide, does not require that individual Parties (such as the U.S.) prohibit the use of stocks by users whose uses fall outside the categories of agreed-upon critical uses. Further detail on the issue of non-critical users’ access to pre-phaseout inventory is available in previous CUE preambles and response to comments documents available in thedocket. Though EPA is not using authorities under the Clean Air Act to restrict the use of prephaseout inventory, EPA is limiting the crops that will legally be able to use methyl bromide through the re-registration process under FIFRA. Users and sellers of methyl bromide must meet not only the stratospheric ozone protection requirements under the Clean Air Act, but also mustcomply with all requirements under FIFRA, including limits on the sale of products for preplanting use for certain crops, and all directions for use on product labeling. EPA disagrees that inventory methyl bromide should not be allowed on any non-CUE crop. However, EPA has determined that the risks posed by use of methyl bromide, both the acute and chronic toxicological effects as well as its ability to deplete the ozone layer, would be unacceptable without significant risk mitigation measures, including limiting its use to fewer crops.

 Amount of Methyl Bromide to be Sold From Pre-Phaseout Inventory Is Too High: MBIP commented that the amount of CUE material to be drawn from pre-phaseout stocks for 2010 is too high. In setting the CSA level, MBIP believes that the United States has abused its discretion in allocating CSAs versus CUAs. MBIP stated that in setting the CSA level the NPRM does not consider the impact on CUE users or non-CUE users, or the effect a drawdown of stocks could have on the United States’ ability to respond to catastrophic failure in domestic production of methyl bromide. MBIP commented that the following should be taken into account.

- First, MBIP believes that EPA has unreasonably and unnecessarily depleted pre-phaseout stocks, which will further jeopardize the United States’ ability to address a catastrophic supply disruption. MBIP commented that there is no indication in the NPRM or docket that EPA has considered the effect of the level of CSAs on the SCF in future years. According to the commenter, the proposed CSA level will jeopardize the United States’ ability to address a catastrophic disruption in the supply chain. MBIP’s own calculations show that the level of pre-phaseout stocks would be well below the SCF target for 2011.

- Second, MBIP commented that the proposed rule mistakenly assumes that all stocks are available for CUE users. According to the commenter, existing sales relationships between distributors and non-CUE users limits the amount of stocks that are actually available to CUE users. MBIP noted that significant declines in the amount of pre-2010 Methyl Bromide CUE NPRM Comment Summary p.12 phaseout stocks and the overall market for methyl bromide makes it even more difficult for CUE users to access these stocks.

- Third, MBIP commented that that the lack of sufficient access to pre-phaseout stocks would set users’ needs against each other, potentially causing significant supply and cost challenges at a time of economic hardship. MBIP also noted a severe cutback in the production of Telone, an alternative to which many growers were transitioning; this development may result in an acceleration of the decline of pre-phaseout stocks. [See also comments in Section 8.C of this document] [0035]

EPA disagrees that the allocation in the final rule threatens the U.S.’s ability to respond to a catastrophic supply disruption either in 2010 or 2011. The 2010 CUE rule applies the same methodology as the 2009 CUE rule, using actual inventory data to calculate available stocks. The SCF in 2010 is 2,035 MT while the inventory at the beginning of 2010 is 3,064 MT. Therefore, there is sufficient inventory to allocate 1,028 MT as CSAs in 2010. Furthermore, EPA has considered the effect of this allocation on the 2011 allocation. The SCF has been less than 60% of the total authorization in past CUE Rules. For 2011 the Parties have authorized 2,055 MT. Thus, were EPA to implement a SCF for 2011, preliminary estimates are that it would likely be around 1,300 MT. Based on past usage of pre-phaseout inventory for CSAs and non-critical crops, EPA believes that the inventory will likely be at or around 2,000 MT at the end of 2010. Extrapolating an additional year, EPA roughly estimates a potential SCF lower than 1,000 MT in 2012, given the critical use nomination of 1,181 MT. At this date, EPA believes that were it to implement a SCF for that year, there would be sufficient inventory to address a supply disruption.

EPA continues to recognize, however, that at some date the inventory will be drawn down to the SCF level and then below the SCF even if EPA set the CSA amount equal to the difference between the total authorized CUE amount and the authorized new production amount. The inventory is finite: EPA has made clear in the framework rule in the context of discussing the carryover amount that it will not allow the inventory to increase. 69 FR 76977. EPA has made equally clear in previous rulemakings that the inventory is neither a reserve nor a guarantee.

Access to stocks by non-critical users is discussed above.

 Concerns Regarding the Calculation of Available Methyl Bromide Inventory: Dow AgroSciences expressed its support of EPA’s approach to prioritize utilization of all available stocks over new production, but made the following comments on the calculation of “available” stocks:

- Available stocks should be equivalent to existing stocks amount at the beginning of the control period, including amounts that constitute the SCF.

- The availability and distribution of methyl bromide should be determined by the open market, not the government.

- Methyl bromide producers and distributors should bear the business and market risks of methyl bromide distribution and supply.

- Market transition rates should be increased by the U.S. Government in the case of a significant methyl bromide supply disruption. This action would reduce U.S. reliance on methyl bromide and minimize market disruption. [0033]2010 Methyl Bromide CUE NPRM Comment Summary p.13 The Agency has defined “available stocks” in the 2008 CUE rule and is not revisiting that definition at this time. Regarding market forces on methyl bromide, EPA does not, under the CUE program, determine where methyl bromide inventory should be used, but rather leaves such decisions to the market. However, please see the response above regarding requirements under FIFRA. In this action, EPA is using transition rates from the relevant CUN, and is not aware of any circumstances that would necessitate altering such rates for this year’s rule.

Under-Prediction of Available Stocks Should be Corrected by Exchanging CUAs for CSAs: Dow AgroSciences commented that the proposed rule should require retirement of CUAs in exchange for CSAs in the event that available stocks are under-predicted. [0033] The Agency has recalculated “available stocks” using end-of-year inventory data rather than using an estimate of drawdown. The pre-phaseout inventory on December 31, 2009, is double what the Agency calculated in the proposed rule (3,064 MT compared to 1,437 MT). As a result, EPA now calculates that 1,028,108 kg of pre-phaseout inventory would be “available stocks.” In the final rule, EPA is applying its existing framework to determining CSAs and CUAs and is not adopting the approach limiting new production that was discussed in the proposed rule. However, EPA may consider modifying the existing framework in future CUE rulemakings.



## 5. Summary of Comments on the Supply Chain Factor

Commenter Organization Document ID No David Doniger Natural Resources Defense Council (NRDC) 0032

B. Houtman Dow AgroSciences 0033

 The Supply Chain Factor Should Not Be Applied: NRDC stated their objection to the proposed supply chain factor deduction from available pre-2005 stocks and urged EPA to add the SCF amount to the amount drawn down to meet critical uses. NRDC found no rational basis for making an allowance for risk of catastrophic events to a plant, given a lack of proof that such a significant risk exists. NRDC commented that the assumption by the EPA that the catastrophic loss of the plant will occur right after the first of the year is flawed, as it is likely that the final 2010 ruling will be issued after this annual period of peak usage has passed. NRDC also questioned EPA’s proposal to keep four months of methyl bromide supply on hand in case of production failure, given that “no chemical company routinely keeps more than a two or three month supply of a chemical in the supply chain.” In addition, NRDC commented that EPA’s hypothetical case in which farmers have no alternative to methyl bromide and would lose entire crops in the case of a production failure is faulty, since many farmers could adjust, for example, by planting for one season using alternative chemicals or practices. NRDC further noted that the Parties rejected the U.S. proposal to allow maintenance of a half-year supply chain reserve. Lastly, NRDC stated that there is no reasonable basis for calling some stocks “unavailable” to maintain the supply chain, since EPA allows pre-phaseout stocks to be used by non-critical users and thus cannot guarantee that stocks will be held for a supply chain purposes. [0032]2010 Methyl Bromide CUE NPRM Comment Summary p.14  Events on which the Supply Chain Factor is Based Are Unlikely: Dow AgroSciences commented that the calculation of the SCF was overly conservative and unlikely. Dow specifically noted that methyl bromide has been produced for decades without significant disruptions, and that the disruption would need to occur during the peak 15-week production period for the calculation to be relevant. [0033] EPA has addressed these comments in prior rulemakings including the 2008 and 2009 CUEs; those responses are available in the docket for this rulemaking. EPA is using the existing framework to allocate amounts for 2010, including maintaining the SCF as a method for determining how many allowances should be issued as CSAs.



## 6. Summary of Comments on Treatment of Carry-Over Amounts

Commenter Organization Document ID No B. Houtman Dow AgroSciences 0033 Tracy Heinzman Wiley Rein LLP, Representing Methyl Bromide Industry Panel (MBIP) 0035

 Support for Current and Proposed Treatment of Carry-Over:Dow AgroSciences indicated support of EPA’s current and proposed treatment of carry-over amounts and utilization of the reporting and tracking schemes. [0033] EPA’s calculation of the amount of carryover at the end of 2008 is consistent with the method used in previous CUE rules. EPA calculates that the carryover amount at the end of 2008 was 251,591 kg, which is the difference between the reported amount of critical use methyl bromide acquired in 2008 and the reported amount of exports or sales of that material to end users in 2008 (3,036,130 – 2,784,539 = 251,591 kg).

 Current Reporting on Carry-Over Amounts is Inaccurate: MBIP commented that it is not apparent that EPA has pursued companies that have not filed the required reports on carryover, and that if EPA obtained the full set of reports, it is the opinion of MBIP that the actual carryover amount would be lower. MBIP reiterated its comments from 2008 and 2009 that a more accurate assessment of the carry-over amount could be developed by modifying the reporting system, or by calculating the carryover as the sum of all critical use methyl bromide that companies report as being held in inventory. [0035] EPA has addressed these comments in prior rulemakings including the 2008 and 2009 CUEs; those responses are available in the docket for this rulemaking. Also, EPA stated in the proposed rule that it had contacted companies that it suspected may have purchased or sold methyl bromide but had not submitted reporting forms. EPA received late reports totaling 15,686 kg. As a result EPA adjusted the carryover amount accordingly in this final rule.



## 7. Summary of Comments on Amounts for Research Purposes

Commenter Organization Document ID No Tracy Heinzman Wiley Rein LLP, Representing Methyl Bromide Industry Panel (MBIP) 00352010 Methyl Bromide CUE NPRM Comment Summary p.15  Pre-Phaseout Stocks Should Not Be Used for Research: MBIP commented that the prephaseout stockpile is at a “dangerously low level” and should not be drawn down for research purposes. MBIP stated that the new production level should be increased to account for any methyl bromide dedicated for research purposes. [0035] In previous years, the Parties authorized an additional amount of critical use methyl bromide for research. EPA then subtracted that amount from new production in order to have the effect of using inventory for research, even if researchers did not actually use inventory. Unlike previous years, the critical use nomination for 2010 did not specifically request an amount for research purposes, and the Parties did not authorize any separate amount specifically for research. Therefore, there is no specific amount by which EPA could increase new production per MBIP’s
comment.

Research on the critical use crops shown in the table in Appendix L to subpart A of the final rule is fundamental to the critical use process. Researchers have always been able to use newly produced methyl bromide and EPA is not limiting researchers to inventory in this rule. EPA does not anticipate that the use of inventory for research will affect the amounts available in case of a supply chain disruption given the small amounts used.



## 8. Summary of Comments on Alternatives to Methyl Bromide

Commenter Organization Document ID No T. Martell 0017 John Mueller Fumigation Service & Supply, Inc. 0019 Kevin Pass Action Pest Control, Inc. 0020 Michael Beckers Certified Pest Control Operators Association of Florida 0021

Susan Nichols Degesch America, Inc. 0022 Keith L. Hargrove, Jr. Farmers’ Rice Cooperative 0023

Allen Fugler Florida Pest Management Association, Inc. 0024 Alejandro Vasquez Sun Valley Rice 0025 Gerald Sweeney Vanguard Pest Control Co., Inc. 0026 Michael O’Connor Western Fumigation 0027 Ellen Thoms Dow AgroSciences 0028 Jay C. Bruesch Plunkett’s Pest Control, Inc. 0029 Ellen Thoms Dow AgroSciences 0030, with 6 attachments Bhadriraju Subramanyam Kansas State University, Department of Grain Science and Industry 0031

B. Houtman Dow AgroSciences 0033 W. Norman Patton Boggs LLP, Attorneys at Law, Representing Arysta LifeScience North America LLP 0034

Tracy Heinzman Wiley Rein LLP, Representing Methyl 00352010 Methyl Bromide CUE NPRM Comment Summary p.16 Bromide Industry Panel (MBIP)



### 8.A Sulfuryl Fluoride

 Fourteen commenters indicated their support for sulfuryl fluoride, citing advantages such as ease-of-use, efficacy, safety, and reduced aeration times.

- Fumigation Service & Supply commented that sulfuryl fluoride is “the most practical and comparable alternative to methyl bromide.” The company noted better penetration characteristics and high customer satisfaction, both economically and performance-wise. Fumigation Service & Supply also noted, however, that sulfuryl fluoride requires “a closer eye to biological need for effective treatments.” [0019]

- Action Pest Control commented that ProFume® (sulfuryl fluoride) is the only viable gas fumigant alternative labeled for most post-harvest applications, and has been successfully used by the company on 18 structural fumigations over the past 6 years. Based on company experience, the commenter noted the following benefits of ProFume (comparedto methyl bromide): faster dispersion of the fumigant; faster aeration times; no ‘offgassing’; and customizable gas usage resulting in less potential lost production time and less gas used, and thus less chemical cost. Action Pest Control also noted that Dow AgroSciences, the manufacturer of Profume, has a better stewardship program for Profume than methyl bromide. In addition, Action Pest Control cited a study by Dr. Linda Mason of Purdue University, which concluded “no practical difference in efficacy from sulfuryl fluoride and methyl bromide in flour mill fumigations.” [0020]

- Certified Pest Control Operators (CPCO) commented that both Vikane® (sulfuryl fluoride) and ProFume are highly effective in controlling pests in structural and commodity applications, and have a solid track record of controlling pests with one application. CPCO also noted that Dow AgroSciences’ stewardship program for these alternatives sets the industry standard. In addition, CPOC emphasized that methyl bromide can react with materials found in or around the treatment site, the byproducts of which can ruin food or medical items, and that such reactions are not a concern for ProFume. [0021]

- Degesch America, Inc. indicated their support for the use of ProFume for post harvest use applications, citing “good results, both in application, total pest population control and aeration timing.” [0022]

- The Farmer’s Rice Cooperative indicated their support for the current label and use of ProFume in their integrated pest management program, citing the following benefits: fast and effective pest control for treatment of post-harvest durables and processing plants without significant changes to the current operating procedures; non-corrosion of electronics or machinery; colorless and odorless, with acceptable residues for food use; and increased efficacy and safe use through precision fumigation tools and programs. The commenter also noted the few viable alternatives available apart from ProFume. [0023]

- The Florida Pest Management Association commented that its members have found ProFume to be an effective alternative to methyl bromide for a range of post-harvest pest problems in storage and mill settings, and that these members’ experience demonstrates2010 Methyl Bromide CUE NPRM Comment Summary p.17 the safety, efficacy, and economic feasibility of Profume. Other cited benefits were: rapid aeration, decreased commodity sorption, ease of use, wide array of target pests, and limited costs. [0024]

- Sun Valley Rice noted their positive experience with ProFume, citing effectiveness and safety; a “good kill” in a shorter period of time; reliability and minimal down time; no damage to electronic equipment; and safety training and education classes, as offered by Dow AgroSciences, which also emphasize proper sanitation. Sun Valley Rice also urged EPA to avoid increased limitations on the use of ProFume, which would not only impact producers but also consumers, who could face higher prices of goods if more expensive alternatives must be used. [0025]

- Vanguard Pest Control noted that in 2008 they switched to exclusive use of ProFume for post harvest fumigations, and cited positive customer feedback, cost savings, and faster aeration of treated structures and commodities versus methyl bromide. This commenter also urged EPA and APHIS to work more closely together to include Profume in APHIS’s treatment schedules. [0026]

- Western Fumigation noted their experience with Vikane as an effective treatment of houses for wood destroying insects and ProFume for food processing facilities, grain and flour mills, and cocoa beans. Noted advantages of ProFume were: safety and effectiveness, precise fumigations, rapid aeration, and ease of use. Western Fumigation also noted that for cocoa bean fumigations, ProFume has been safer and more effective than methyl bromide, with fewer customer complaints and callbacks. Western Fumigation urged EPA to adopt a broader labeling of ProFume for additional treatment applications, such as USDA quarantine fumigations. [0027]

- Plunkett’s Pest Control noted their support of ProFume as an effective, cost-effective, and environmentally-friendly replacement for methyl bromide, citing the following advantages: increased flexibility using the “Precision Fumigation” protocols, including the ability to use less fumigant under certain circumstances, which can lead to significant cost savings; effectiveness against target pests; and ease of use. Plunkett’s also noted that ProFume can be used to fumigate seed stock (which methyl bromide cannot), more quickly than with phosphine. [0029]

- Dow AgroSciences noted that there is new information supporting ProFume as an effective alternative to methyl bromide in post-harvest applications, both technically and economically, and that such information should be taken into account in the allocation of CUEs. Dow further commented that issues reported in the 2010 CUE nominations as barriers to the adoption of ProFume (sulfuryl fluoride) as an alternative to methyl bromide have been “clearly and repeatedly” demonstrated not to be barriers. Dow noted that ProFume has faster aeration and causes less stress on treated facilities, as compared to methyl bromide. Dow further stated that the efficacy of ProFume has been validated on additional stored product pests, as well as been demonstrated in mill evaluations and for various commodities, including cocoa, and dried fruits and tree nuts. Dow noted that sales of ProFume have increased since 2004, and that no disruption to the food industry was observed in Europe after 2008, after which date no methyl bromide was used for post-harvest fumigation. Dow attached several supporting documents with updated data on ProFume’s efficacy, product use, and economics. [0028, 0030, 0033]2010 Methyl Bromide CUE NPRM Comment Summary p.18 - One commenter commented on sulfuryl fluoride’s effectiveness against insects, its ability to distribute quickly within a treated facility, and its ability to aerate upon completion of fumigation. The commenter also noted that sulfuryl fluoride has no adverse impact on milling, rheological, and baking quality of wheat and the quality of durum wheat and pasta, and wheat, corn, and soybean seeds; that tests show that sulfuryl fluoride and methyl bromide behave similarly in terms of gas retention and loss; that the Fumiguide enables improved sealing and fumigation practices for better efficacy; and that the decrease in methyl bromide CUEs nominated and the economics and effectiveness of sulfuryl fluoride are important drivers for the switch to this alternative. [0031] EPA appreciates technical supporting information, such as updated data from Dow on ProFume’s efficacy, product use, and economics. However, EPA notes that many of the studies submitted by Dow were for efficacy and laboratory investigations, and the investigations do not indicate the importance of temperature in the ability of sulfuryl fluoride to kill insect (especially beetle) eggs. In addition, economic data is not provided for the studies. EPA has taken into consideration the uptake of sulfuryl fluoride in the 2010 CUN. Also, as discussed in the final rule, EPA does not have economic data to support an increased transition rate or a reduction in the allocation. Sulfuryl fluoride cannot be used in all the situations where methyl bromide can. Therefore, EPA is not making an additional reduction to amount of new production in this rule. EPA has addressed comments on sulfuryl fluoride in past CUE rulemakings, including the 2009 CUE Response to Comments, included in this docket.



### 8.B Iodomethane

 Monitoring Effectiveness of Iodomethane: One commenter noted that monitoring the increased use of iodomethane in North Carolina and Tennessee strawberry nurseries due to proposed EPA limits on methyl bromide use will be “a good way to test this methyl bromide alternative’s effectiveness.” [0017]

 MIDAS® (Iodomethane Formulation) Is Widely Available, Widely Applicable, and Has Economic Advantages: Arysta LifeScience commented that MIDAS®, containing iodomethane, is a drop-in alternative for methyl bromide in 85% of soil applications and is registered for use in 47 states. Arysta noted that in 2008 and 2009, the market penetration of iodomethane has been greater than estimated by EPA; in the 2009 rule, EPA estimated that 262,035 kg of iodomethane could replace methyl bromide, representing approximately 5,200 acres treated, however MIDAS was used in 2009 on almost 10,000 acres. Arysta commented that iodomethane can be used easily, with the same equipment as methyl bromide, and can be applied in raised bed applications using buried irrigation lines (an option not currently available for methyl bromide) and used with highly retentive films, resulting in increased worker safety and reduced concentrations of the active ingredient. MIDAS is also economically viable, as it can be applied at 20-30% lower rates per-acre than methyl bromide with no performance reduction. Arysta provided information showing MIDAS priced competitively compared to methyl bromide, and cited information from the EPA Experimental Use Permit program showing increased yield compared to methyl bromide.2010 Methyl Bromide CUE NPRM Comment Summary p.19 The commenter believes that about 250,000 kg of iodomethane will be sold in 2010, replacing at least 650,000 kg of critical use methyl bromide, with use primarily in Florida, Georgia, and Virginia, and on strawberries, tomatoes, peppers, and ornamentals.The commenter attached several studies on the advantages of MIDAS and its costeffectiveness compared to methyl bromide to support their comment. [0034]

 Lack of Access to Iodomethane: MBIP supported EPA’s proposal to not make further reductions in 2010 to account for the uptake of alternatives. Further, MBIP noted that iodomethane, an alternative fumigant, is not easily available to methyl bromide users due to lack of registration in California and Washington and higher costs. [0035] EPA has addressed these comments in prior rulemakings; those responses are available in the docket for this rulemaking (for example, see 2009 CUE response to comments).
Also, as stated in the 2010 final CUE rule, the 2010 CUN includes transition rates for iodomethane and there is no new information that would suggest changing those rates. Currently, iodomethane is registered for use in 47 states. California has not yet registered iodomethane for use in the state. EPA did not propose any adjustment based on iodomethane in its proposed rule. In response to comments that EPA underestimated the uptake of iodomethane, EPA calculated the uptake of iodomethane in the critical use nomination. EPA would revisit that calculation in this rule if new data on market penetration or state registrations warranted such action, as it did in the 2008 and 2009 CUE rules. The Agency has already made a reduction in the nomination. EPA has accounted for all state registrations in the 2010 nomination and does not believe additional reductions are warranted.



### 8.C Market Status of Telone

 Supply of Telone Should Be Restored by End of 2009: NRDC commented that the principal supplier of Telone is making arrangements to ensure that the supply is fully restored by the end of 2009. In addition, NRDC noted that even in the case of a Telone shortage, farmers can use iodomethane and existing methyl bromide stockpiles, and thus there is no basis for allowing more new methyl bromide production/import. [0032]

 Improved 2010 Telone Supply: Dow AgroSciences indicated a “high degree of confidence” that supply levels of 1,3-D in 2010 will be significantly improved from 2009. The commenter stated that 1,3-D, marketed under Telone II, Telone C-17, Telone EC, InLine and Curfew, is a technically and economically viable alternative to methyl bromide in pre-plant applications. [0033]

 Continuation of Telone Shortage: MBIP stated that the Telone shortage will continue through 2010. [0035] In response to these comments, EPA has sought additional Telone production information from Dow AgroSciences, which the Agency has entered into the CBI portion of the docket, and based on that data does not believe that the shortage will continue into 2010.



### 8.D Other Comments on the Transition to Alternatives:

 Alternatives to Meet Demand in the Field: One commenter noted that the EPA granted 2009 post-harvest critical use exemptions for bakeries, but that bakeries did not file an application in 2010, proving that “alternatives can work in certain fields.” [0017]2010 Methyl Bromide CUE NPRM Comment Summary p.20  Cost Concerns for Alternatives: Fumigation Service & Supply commented that alternative costs need to be monitored closely, as prices have risen sharply in the last year. [0019] EPA 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. EPA has not received any new data that was not considered by the Parties to the Montreal Protocol that would lead it to change the transition rates for 2010. Therefore, the final rule does not make any adjustments to account for new information on the uptake of alternatives. EPA monitors information regarding the costs of fumigating with methyl bromide and alternatives, and welcomes such information from end users. Such information is necessary to determine the economic feasibility of alternatives when developing the critical use nominations.



## 9. Summary of Comments on Emissions Minimization

Commenter Organization Document ID No David Doniger Natural Resources Defense Council (NRDC) 0032

B. Houtman Dow AgroSciences 0033

 Two commenters commented that emissions minimization strategies should be mandated:

- NRDC commented that insufficient action has been taken to minimize emissions, and that EPA should require that emission reduction techniques (e.g., virtually impermeable films) be used, or at a minimum, that EPA should account for the maximum feasible use of emissions minimization techniques when calculating critical use amounts. [0032]

- Dow AgroSciences commented that emission minimization measures should be mandated, as they are currently “understood, available now and can be implemented quickly.” [0033]

The quantity of methyl bromide nominated by the USG reflects the lower application rates necessary when using tarps. However, rather than mandate emission reduction techniques, EPA will continue to work with the U.S. Department of Agriculture – Agricultural Research Service (USDA-ARS) to promote the techniques on a voluntary basis. As discussed in the final rule, the federal government has invested substantial resources into best practices for methyl bromide use, including emission reduction practices. USDA-ARS has a national outreach effort to publicize the best practices.

The Agency also continues to encourage researchers and users who are successfully utilizing emissions minimization techniques to inform EPA of their experiences and for applicants to provide such information with their critical use applications. The Agency welcomes information on the implementation of emission minimization techniques and whether and how further emissions could be reduced further.



## 10. Summary of Comments on Allocation Methodology

Commenter Organization Document ID No2010 Methyl Bromide CUE NPRM Comment Summary p.21 B. Houtman Dow AgroSciences 0033

 Use-Specific vs. Lump Sum Allocation Method: Dow AgroSciences suggested use of a “usespecific” allocation method instead of the current “lump sum” approach. Dow stated that the lump sum approach does not guarantee access for approved critical users and instead allows those with the greatest ability to pay to obtain methyl bromide. Dow also commented that the lump sum approach delays the transition towards alternatives and does not enable the Agency to keep methyl bromide from uses that have already successfully begun the transition to alternatives. Dow suggested that if the “lump sum” method continues to be used, that the current system differentiating pre-plant and post-harvest uses for new production should also be maintained and that separate limits on CUE uses for pre-plant and post-harvest uses should be established. [0033]

The Framework Rule proposed several options for allocating critical use allowances, including a sector-by-sector approach. The Agency evaluated the various options based on their economic,environmental, and practical effects. After receiving comments, EPA determined that a lumpsum, 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. As stated in the 2009 Response to Comments document (available in the docket for this rule), rather than specify the amount of methyl bromide available to each crop/region, EPA divides the total CUE amount between the pre-plant and post-harvest sectors. This allows market forces to help mediate where, for each sector, the methyl bromide will beused rather than EPA’s stratospheric ozone program dictating use on a state-by-state and cropby-crop basis. For the reasons discussed in the preamble to the 2009 CUE rule (74 FR 19894), the Agency believes that under the approach adopted in the Framework Rule, the actual critical use will closely follow the sector breakout listed in the Parties’ decisions.