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 BROMIDE

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 SULFURYL FLUORIDE ................................................................................................................................16

8.B IODOMETHANE ..........................................................................................................................................18

8.C MARKET STATUS 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 .............................................20
2010 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 condition 
2010 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 use 
2010 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. Specifically 
2010 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 from 
2010 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 “available 

stocks” 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 proposed 
2010 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 0032
2010 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 the 

docket. 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 must 

comply 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)

0035
2010 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 0035
2010 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 (compared 

to 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 demonstrates 
2010 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 No
2010 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 be 

used 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.