19–006 

112TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 112–679 

U.S. AGRICULTURAL SECTOR RELIEF ACT OF 2012 

SEPTEMBER 19, 2012.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. UPTON, from the Committee on Energy and Commerce, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 6194] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Energy and Commerce, to whom was referred 

the bill (H.R. 6194) to ensure the viability and competitiveness of 

the United States agricultural sector, having considered the same, 

report favorably thereon without amendment and recommend that 

the bill do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 2 

Background and Need for Legislation .................................................................... 2 

Hearings ................................................................................................................... 6 

Committee Consideration ........................................................................................ 7 

Committee Votes ...................................................................................................... 7 

Committee Oversight Findings ............................................................................... 9 

Statement of General Performance Goals and Objectives .................................... 9 

New Budget Authority, Entitlement Authority, and Tax Expenditures ............. 9 

Earmark ................................................................................................................... 9 

Committee Cost Estimate ....................................................................................... 9 

Congressional Budget Office Estimate ................................................................... 9 

Federal Mandates Statement ................................................................................. 10 

Advisory Committee Statement .............................................................................. 10 

Applicability to Legislative Branch ........................................................................ 10 

Section-by-Section Analysis of Legislation ............................................................ 10 

Changes in Existing Law Made by the Bill, as Reported ..................................... 11 

Dissenting Views ..................................................................................................... 15 


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1Ozone-depleting substances scheduled for phaseout in the U.S. include halons, 

chlorofluorocarbons (CFCs), carbon tetrachloride, hydrobromofluorocarbons (HBFCs), methyl 

chloroform, chlorobromomethane, methyl bromide, and hydrochlorofluorocarbons (HCFCs). 

PURPOSE AND SUMMARY

H.R. 6194, the ‘‘U.S. Agricultural Sector Relief Act of 2012,’’ was 

introduced by Representative Phil Gingrey, M.D., on July 25, 2012 

(together with Representatives Bishop, Conaway, Costa, Ellmers, 

Lucas, Rooney, Schmidt, Southerland, Terry, Walden, and Whitfield). The legislation seeks to ensure that the U.S. agricultural sector has access to sufficient quantities of the fumigant methyl bromide for critical uses. Key provisions of this bill would: • Direct the EPA Administrator to seek critical use exemptions 

under the Montreal Protocol treaty process for the full quantities 

needed for critical uses. • Direct the EPA Administrator to allow use of limited amounts 

of methyl bromide in response to emergency events at farms, nurseries, and food processing and storage facilities where needed to 

control a pest or disease. 

BACKGROUND AND NEED FOR LEGISLATION

For decades, methyl bromide was widely used as a fumigant to 

control pests, including for the cultivation of a variety of crops, including strawberries, tomatoes, peppers, eggplant, flowers, and tree 

and vine crops, and at grain mills, food storage and food processing 

facilities. Pursuant to the Montreal Protocol on Substances that 

Deplete the Ozone Layer (Montreal Protocol), methyl bromide in 

the U.S. has been phased out except for allowable exemptions, including critical uses. H.R. 6194 addresses concerns relating to U.S. 

critical use exemptions under the treaty process. 

STATUTORY AND REGULATORY BACKGROUND

The Montreal Protocol is an international environmental treaty 

designed to reduce the release of ozone-depleting substances into 

the atmosphere by restricting their production and consumption. 

The treaty was originally signed by the U.S. in 1987 and entered 

into force in 1989. To implement the treaty, Congress amended the 

Clean Air Act in 1990 and 1998 to add provisions to protect the 

stratospheric ozone layer. These provisions are set forth in Title VI 

of the Clean Air Act, which is administered by the U.S. Environmental Protection Agency (EPA). 

The Montreal Protocol treaty sets schedules for developed and 

developing countries to gradually phase out the use of ozone-depleting substances according to a schedule that differentiates between 

industrialized and developing countries.1 Methyl bromide was 

added to the list of ozone-depleting substances covered by the treaty in 1992. Under the treaty, the U.S. and other industrialized 

countries phased out production and consumption of methyl bromide in 2005 except for allowable exemptions. 

Under the treaty, Parties to the Montreal Protocol have authority 

to approve exemptions from the phaseout of methyl bromide for 

‘‘critical’’ uses that are nominated by a given country. In 1997, the 

Parties issued Decision IX/6, which defines a use to be critical if 

‘‘the lack of availability of methyl bromide for that use would result 

in a significant market disruption,’’ and ‘‘there are no technically 


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2See 69 Fed. Reg. 76982 (Dec. 23, 2004). Under the Montreal Protocol treaty, there is also 

an allowable exemption, not addressed in H.R. 6194, for the production and consumption of 

methyl bromide for quarantine and preshipment purposes. 3 At the July 18, 2012 hearing, the following growers testified: Mark Murai who is President 

of the California Strawberry Commission and third-generation California strawberry farmer; 

Scott DiMare who is Vice President and Director of Farm Operations for Dimare Ruskin, Inc. 

and Florida tomato farmer; Michelle Keeler who is Vice-President of Mellano & Company, a 

Continued 

and economically feasible alternatives or substitutes available to 

the user that are acceptable from the standpoint of environment 

and health and are suitable to the crops and circumstances of the 

nomination.’’ In addition, in 1997 the Parties also issued Decision 

IX/7, allowing for use of methyl bromide in response to emergency 

events, in an amount up to 20 tons per event. 

To allow for critical uses in the U.S., EPA issued a final rule in 

2004 entitled ‘‘Protection of Stratospheric Ozone: Process for Exempting Critical Uses From the Phaseout of Methyl Bromide.’’ 2

The rule established a critical use exemption (CUE) process for 

U.S. growers and set forth a list of approved critical uses, including 

pre-plant uses for cultivation of cucurbits, eggplant, forest seedlings, ginger, orchard nursery seedlings, orchard replant, 

ornamentals, peppers, strawberry nurseries, strawberry fruit, 

sweet potatoes, tomatoes and turfgrass, and post-harvest uses including for food processing and commodity storage. 

Pursuant to the CUE process, EPA annually solicits and reviews 

applications from growers and grower groups to determine whether 

technically and economically feasible alternatives available to the 

applicant, and whether there would be significant market disruption if no exemption were available. The process culminates in the 

submission of a critical use nomination by the U.S. Department of 

State to the United Nations Environment Programme Ozone Secretariat. After a decision is made by the Parties to the Montreal Protocol, EPA issues a regulation authorizing critical uses and 

amounts for the relevant year consistent with that decision. 

To facilitate the research and development of methyl bromide alternatives, Congress has since 2000 appropriated nearly $300 million to the U.S. Department of Agriculture (USDA) for research. 

The U.S. agricultural sector also has committed significant time, 

resources, and funds to identify alternatives and conduct research, 

and there are substantial ongoing efforts at USDA, land-grant universities, and in the private sector to develop viable alternatives. 

The Committee is encouraged by the work of these entities and 

hopes that alternatives will continue to be developed and adopted. 

NEED FOR LEGISLATION

U.S. critical use exemption nominations submitted by the U.S. 

Department of State to the United Nations Environment Programme Ozone Secretariat on behalf of America’s agricultural and 

food sector have declined steeply since 2005, and the most recent 

U.S. nominations represent less than 10 percent of the quantity of 

methyl bromide first approved for exemption in 2005. While alternatives (with varying degrees of effectiveness) have been developed 

for agricultural applications, a number of growers testified at a 

July 18, 2012, legislative hearing that they and others in their industry are concerned about the current exemption process and the 

continued need for methyl bromide for critical uses.3


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California grower and testified on behalf of the Society of American Florists; and Russell Costanza who is owner of Russell Costanza Farms in Michigan and grows peppers, eggplant, 

squash, tomatoes and cucumbers. 

For example, growers expressed concern about the lack of access 

to methyl bromide under the current process and testified that that 

in some cases viable methyl bromide alternatives do not yet exist, 

existing alternatives are not effective, or there is a resurgence of 

pests or disease several years after transitioning to alternatives. 

Witnesses testified that the recent withdrawal from the U.S. market of methyl iodide, marketed as ‘‘Midas,’’ has left certain growers 

without a viable methyl bromide alternative. EPA is also currently 

proposing to phase out the tolerances for sulfuryl fluoride, which 

is a primary alternative to methyl bromide for certain post-harvest 

uses. 

Growers further raised concerns that under the current CUE 

process exemption applications have been arbitrarily reduced by 

EPA and the Methyl Bromide Technical Options Committee 

(MBTOC), which is an advisory body that reviews U.S. CUE nominations and makes recommendations to the Parties. For example, 

California Strawberry Commission President Mark Murai testified 

‘‘our applications continue to be arbitrarily reduced without any or 

inadequate scientific explanation,’’ and that ‘‘the rules keep changing every page we turn.’’ Similarly, Society of American Florists 

representative Michelle Keeler testified that ‘‘[d]espite having submitted CUE applications substantiating their need for the product 

in accordance with the provisions of the Protocol, U.S. growers are 

being forced to take arbitrary cuts in their requested levels, with 

absolutely no scientific reasoning and no justification.’’ 

Growers also testified that insufficient access to methyl bromide 

threatens significant economic hardship and job losses within the 

agricultural sector. For example, California Strawberry Commission President Mark Murai testified that a University of California 

Davis economic study commissioned by the California Department 

of Food and Agriculture has concluded that without access to methyl bromide ‘‘California communities will lose over $1.5 billion annually and more than 23,000 jobs annually.’’ Society of American Florists representative Michelle Keeler testified that without access to 

methyl bromide ‘‘U.S. growers will be rendered noncompetitive in 

the global marketplace. This will force many to cease operations, 

killing jobs and causing significant harm to the local communities 

in which we operate at a time of great economic uncertainty.’’ Florida tomato grower Scott DiMare testified that ‘‘[a]s an industry 

that is struggling to remain competitive in the globally expanding 

sourcing of fresh vegetables, we have seen our fumigation costs triple since the mainstay of our production system, methyl bromide, 

has come under regulatory restrictions dictated by the Montreal 

Protocol on Substances that Deplete the Ozone Layer and its implementation under the US Clean Air Act.’’ Michigan vegetable farmer 

Russell Costanza testified that ‘‘I cannot overstate the importance 

of access to methyl bromide for my farm operation and my fellow 

Michigan growers. We are facing a crisis and need relief.’’ 

The Committee has received numerous letters of support for H.R. 

6194 expressing concerns about the current critical use exemption 

process and the availability of methyl bromide for critical uses, including from the following entities: 


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4Letters were submitted by Aptos Berry Farms, Del Mar Food Products, Corp., Dole Berry 

Company, Dole Fresh Berry Co., Driscoll’s, Driscoll Strawberry Associates, Inc., Garroutte 

Farms, Inc., M. Chavez & Son Farming, Inc., Mira Mar Farms, Nagata Brothers, Naturipe 

Berry Growers Inc., Otilio Farms, LLC, Providence Farms LLC, Rancho Guadalupe, LLC, RBI, 

Shelford Associates, Solmar Farms, Inc., Sunrise Growers, Uesugi Farms, Inc., Uyematsu, Inc., 

Well-Pict Berries and other California strawberry growers. 

Agricultural Trade Services 

Almond Hullers & Processors Association 

American Farm Bureau Federation 

American Nursery & Landscape Association 

AG-Fume Services 

California Citrus Mutual 

California Grape and Tree Fruit League 

California Strawberry Farmers and Shippers 4

Florida Farm Bureau Federation 

Florida Fruit and Vegetable Association 

Florida Tomato Exchange 

Georgia Farm Bureau Federation 

Georgia Fruit & Vegetable Growers Association 

Holzinger Flowers Inc. 

Hopkinsville Milling Company 

Knappen Milling Company 

Lassen Canyon Nursery, Inc. 

Maritime Exchange for the Delaware River and Bay 

Leitz Farms LLC 

North American Millers Association 

Northwest Horticultural Council 

Produce Marketing Association 

Society of American Florists 

Star of the West Milling Co. 

Sunkist Growers 

Sunshine State Carnations, Inc. 

Sunsweet 

TriCal/TriEst 

USA Rice Federation 

Western Growers Association 

Western Industries 

Letters expressing concern about the continued availability of 

methyl bromide for critical uses were also submitted by the California Date Commission and California Walnut Commission. 

In addition, a number of companies submitted letters specifically 

raising concerns due to EPA’s pending proposal to phase out use 

of sulfuryl fluoride, which is a primary alternative to methyl bromide for certain post-harvest uses. These uses include to control 

stored product pests in cereal grains (e.g., wheat, corn, and rice, 

and the mills that process these grains), tree nuts (e.g., walnuts, 

almonds), dried fruits (e.g., raisins, dried plums); dried legumes 

(e.g., garbanzo beans, black-eyed peas), cocoa beans, and coffee 

beans. While EPA has solicited further comment with respect to its 

initial proposal to withdraw the tolerances for food uses of sulfuryl 

fluoride, a product critical to the protection of U.S. agriculture, 

there is currently uncertainty about the outcome of this rulemaking process. 


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WHAT THE U.S. AGRICULTURAL SECTOR RELIEF ACT OF 2012 WOULD DO

H.R. 6194 directs the EPA Administrator to continue to seek critical use exemptions under the Montreal Protocol treaty process for 

the full amounts of methyl bromide needed by U.S. farmers. It requires EPA, when considering exemption applications, to demonstrate in writing that there is substantial evidence to establish 

that a technically and economically feasible alternative is available 

to an applicant, and expressly requires that the agency consider 

cost, commercial availability, demonstrated effectiveness, and State 

or local regulations that may restrict its use when evaluating potential alternatives. The bill also directs that if a methyl bromide 

alternative is removed from the U.S. market, the EPA Administrator shall seek to address the shortfall under the treaty process. 

The bill also supports development of alternatives by directing EPA 

to take action to ensure that sufficient quantities of methyl bromide are available for research on methyl bromide alternatives for 

the agricultural sector. 

H.R. 6194 also directs EPA to set up a process, in consultation 

with U.S. Department of Agriculture, to address emergency situations that may arise at a farm, nursery, or food processing or storage facility where methyl bromide is needed to control a pest of disease. The bill specifically directs the EPA Administrator, in consultation with the Secretary of Agriculture, to issue regulations for 

these emergency uses. The bill also limits emergency uses in any 

calendar year to the total amount authorized under the Montreal 

Protocol for the U.S. in 2011, which was 2,055 metric tons. 

While this legislation would ensure that EPA continues to pursue 

critical use nominations for the limited quantities of methyl bromide still needed by the U.S. agricultural sector, it would not have 

an adverse impact on the environment. In the U.S., the use of 

methyl bromide has dramatically decreased, and H.R. 6194 addresses only those limited amounts still needed by U.S. farmers 

and growers. Currently, methyl bromide comes primarily from natural sources, most of which is destroyed in the troposphere, and according to a 2010 report issued by the World Meteorological Organization, methyl bromide from human activities is responsible for 

only 0.03% of ozone depleting substances entering the atmosphere. 

H.R. 6194 does not authorize the use of methyl bromide in quantities greater than the 2011 Montreal Protocol authorized level. 

HEARINGS

On July 18, 2012, the Subcommittee on Energy and Power held 

a legislative hearing on the ‘‘U.S. Agricultural Sector Relief Act of 

2012,’’ and received testimony from: 

• Mark Murai, President, California Strawberry Commission; 

• Michelle Castellano Keeler, Vice President, Mellano & 

Company on behalf of the Society of American Florists; 

• Russell Costanza, Owner, Russell Costanza Farms; 

• Scott M. Dimare, Vice President & Director of Farm Operations, Dimare Ruskin, Inc.; 

• David Doniger, Policy Director, Climate & Clean Air Program, Natural Resources Defense Council; and, 


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• Regina McCarthy, Assistant Administrator for Air and Radiation, U.S. Environmental Protection Agency (Written Statement for the Record). 

COMMITTEE CONSIDERATION

H.R. 6194 was introduced on July 25, 2012, by Representative 

Phil Gingrey (together with Representatives Bishop, Conaway, 

Costa, Ellmers, Lucas, Rooney, Schmidt, Southerland, Terry, Walden, and Whitfield). 

On July 18, 2012, the Subcommittee on Energy and Power held 

a legislative hearing on the H.R.lll, the ‘‘U.S. Agricultural Sector Relief Act of 2012.’’ 

On July 18 and 19, 2012, the Subcommittee on Energy and 

Power met in open markup session. Three amendments were offered and adopted by voice vote. On July 19, 2012, the Subcommittee on Energy and Power reported the bill favorably to the 

full Committee by a roll call vote of 15 ayes and 6 nays. 

On July 31 and August 1, 2012, the Committee on Energy and 

Commerce met in open markup session and ordered H.R. 6194 reported to the House by a roll call vote of 28 ayes and 16 nays. 

COMMITTEE VOTES

Clause 3(b) of rule XII of the Rules of the House of Representatives requires the Committee to list the record votes on the motion 

to report legislation and amendments thereto. A motion by Mr. 

Upton to order H.R. 6194, reported to the House, as amended, was 

agreed to by a record vote of 28 ayes and 16 nays. The following 

reflects the recorded votes taken during the Committee consideration, including the names of those Members voting for and 

against. 


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COMMITTEE OVERSIGHT FINDINGS

Pursuant to clause 3(c)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee made findings that are reflected 

in this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

H.R. 6194 directs the Administrator of the Environmental Protection Agency to seek critical use exemptions under the Montreal 

Protocol treaty process to ensure the availability of methyl bromide 

where no viable alternative is available. In addition, H.R. 6194 allows for the use of limited amounts of methyl bromide in response 

to emergency events at farms, nurseries, food processing facilities, 

or commodities storage facilities that require use of methyl bromide 

to control pests or diseases. 

NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX

EXPENDITURES

In compliance with clause 3(c)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee finds that H.R. 6194, the 

‘‘U.S. Agricultural Sector Relief Act of 2012,’’ would result in no 

new or increased budget authority, entitlement authority, or tax 

expenditures or revenues. 

EARMARK

In compliance with clause 9(e), 9(f), and 9(g) of rule XXI, the 

Committee finds that H.R., the ‘‘U.S. Agricultural Sector Relief Act 

of 2012,’’ contains no earmarks, limited tax benefits, or limited tariff benefits. 

COMMITTEE COST ESTIMATE

The Committee adopts as its own the cost estimate prepared by 

the Director of the Congressional Budget Office pursuant to section 

402 of the Congressional Budget Act of 1974. 

CONGRESSIONAL BUDGET OFFICE ESTIMATE

Pursuant to clause 3(c)(3) of rule XIII of the Rules of the House 

of Representatives, the following is the cost estimate provided by 

the Congressional Budget Office pursuant to section 402 of the 

Congressional Budget Act of 1974. 

H.R. 6194—U.S. Agriculture Sector Relief Act of 2012 

H.R. 6194 would require the Environmental Protection Agency 

(EPA) to seek critical-use exemptions under the Montreal Protocol 

for applications submitted to the agency for the production, importation, and consumption of methyl bromide. 

Methyl bromide is a chemical compound commonly used in pesticides, though its use has been mostly phased out since 2005 

under the Montreal Protocol, an international treaty to reduce 

ozone-depleting substances. Under the Clean Air Act (CAA), EPA 

may grant critical-use exemptions for methyl bromide producers, 

importers, and users after consulting with the other parties to the 

Montreal Protocol. H.R. 6194 would prohibit EPA from denying 


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critical-use applications for methyl bromide unless EPA has substantial evidence that there is a better alternative for this chemical. This legislation also would expand producers’ ability to claim 

emergency exemptions for limited amounts of methyl bromide. 

To implement those changes related to the use of methyl bromide 

under the CAA, EPA would need to issue regulations and establish 

a methyl bromide emergency program. Based on information from 

EPA, CBO estimates that developing and issuing such regulations 

and administering a new program would cost less than $500,000 

annually over the 2013–2017 period, subject to the availability of 

appropriated funds. 

Pay-as-you-go procedures do not apply to H.R. 6194 because the 

bill would not affect direct spending or revenues. 

H.R. 6194 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

The CBO staff contact for this estimate is Susanne S. Mehlman. 

The estimate was approved by Peter H. Fontaine, Assistant Director for Budget Analysis. 

FEDERAL MANDATES STATEMENT

The Committee adopts as its own the estimate of Federal mandates prepared by the Director of the Congressional Budget Office 

pursuant to section 423 of the Unfunded Mandates Reform Act. 

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b) of the 

Federal Advisory Committee Act were created by this legislation. 

APPLICABILITY TO LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 

accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act. 

SECTION-BY-SECTION ANALYSIS OF LEGISLATION

Section 1—Short title 

This section provides the short title of ‘‘U.S. Agricultural Sector 

Relief Act of 2012.’’ 

Section 2—Ensuring the availability of methyl bromide for critical 

uses 

This section amends section 604(h) of the Clean Air Act relating 

to the phase-out of methyl bromide under the Montreal Protocol 

treaty. 

Section 2(a) directs (i) that the Environmental Protection Agency 

Administrator, for each calendar year, take all appropriate actions 

within the agency’s authority to seek a critical use exemption 

under the treaty for the full amount of methyl bromide necessary 

for approved critical uses; (ii) that the Administrator shall not deny 

or reduce an application unless the Administrator has substantial 

evidence, provided to the applicant in writing, establishing there is 

a technically and economically feasible alternative; and (iii) that 


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the Administrator, in evaluating any potential alternatives, shall 

consider the cost, commercial availability, and demonstrated effectiveness of the alternative, and consider any State or local regulations that may restrict its use. 

Section 2(a) also directs that the Administrator allow for the use 

of methyl bromide in response to emergency events, in an amount 

necessary up to 20 metric tons. Section 2(a) further provides that 

the aggregate amount of methyl bromide allowed for use in response to emergency events in the United States in a calendar year 

shall not exceed the total amount authorized by the Parties to the 

Montreal Protocol for the United States for critical uses in 2011. 

Section 2(a) also directs the Administrator to take all appropriate 

actions to ensure sufficient quantities of methyl bromide are available for research on methyl bromide alternatives. 

Section 2(a) also directs that when an alternative is removed 

from the U.S. market, the Administrator review and take action as 

appropriate to adjust any critical use nomination submitted to the 

Parties to the Montreal Protocol to address the shortfall. 

Section 2(a) also provides the following definitions: 

(1) The term ‘‘approved critical use’’ means approved critical 

uses found in Appendix L to subpart A of part 82 of title 40, 

Code of Federal Regulations, as in effect on January 1, 2005; 

(2) The term ‘‘critical use’’ means a circumstance in which (i) 

there are no technically and economically feasible methyl bromide alternatives or substitutes acceptable from the standpoint 

of environment and health and are suitable to the crops and 

circumstances involved; and (ii) the lack of methyl bromide for 

a particular use would result in significant market disruption; 

(3) The term ‘‘emergency event’’ means a situation at a farm, 

nursery, food processing facility, or commodities storage facility 

that requires the use of methyl bromide to control a pest or 

disease, and for which there is no critical use exemption in effect, or insufficient quantities of methyl bromide available 

under an existing critical use exemption, for such site. 

Section 2(b) directs the Administrator, in consultation with the 

Secretary of Agriculture, to issue final regulations relating to emergency events, including in the regulations criteria for identifying an 

emergency event and provisions to ensure the timely approval or 

disapproval of emergency event applications. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

CLEAN AIR ACT 

* * * * * * * 


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TITLE VI—STRATOSPHERIC OZONE 

PROTECTION 

* * * * * * * 

SEC. 604. PHASE-OUT OF PRODUCTION AND CONSUMPTION OF CLASS 

I SUBSTANCES. 

(a) * * * 

* * * * * * * 

(h) METHYL BROMIDE.—øNotwithstanding¿ 

(1) IN GENERAL.—Notwithstanding subsection (d) and section 

604(b), the Administrator shall not terminate production of 

methyl bromide prior to January 1, 2005. The Administrator 

shall promulgate rules for reductions in, and terminate the 

production, importation, and consumption of, methyl bromide 

under a schedule that is in accordance with, but not more 

stringent than, the phaseout schedule of the Montreal Protocol 

Treaty as in effect on the date of the enactment of this subsection. 

(2) CRITICAL USE EXEMPTIONS AND EMERGENCY EVENTS.— 

(A) CRITICAL USE EXEMPTIONS.— 

(i) IN GENERAL.—For each calendar year, beginning 

with 2013, the Administrator, pursuant to an application submitted by any person, shall take all appropriate actions within the authority of the Environmental Protection Agency to seek a critical use exemption under the Montreal Protocol in order to allow the 

production, importation, and consumption of methyl 

bromide— 

(I) for any use of methyl bromide that— 

(aa) is an approved critical use; and 

(bb) is determined by the Administrator to 

be a critical use for the applicant; and 

(II) in the amount necessary for the use described in subclause (I). 

(ii) APPLICATIONS.—The Administrator shall not 

deny any application referred to in clause (i), or reduce 

the amount requested under any such application, unless the Administrator— 

(I) has substantial evidence to establish that 

there is a technically and economically feasible alternative available to the applicant for the use of 

methyl bromide for which the application was submitted; and 

(II) provides such evidence to the applicant in 

writing. 

(iii) ALTERNATIVES.—The Administrator, when evaluating the technical and economic feasibility of any alternative pursuant to clause (ii), shall consider— 

(I) cost and commercial availability of the alternative to the applicant; 

(II) demonstrated effectiveness of the alternative 

for the applicant’s specific intended use; 


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(III) demonstrated effectiveness of the alternative 

in the geographic region of the applicant’s intended 

use; and 

(IV) State or local regulations that may restrict 

use of the alternative for the applicant’s intended 

use. 

(B) EMERGENCY EVENTS.— 

(i) IN GENERAL.—For each calendar year, beginning 

with 2013, the Administrator, pursuant to an application submitted by any person, shall allow the production, importation, and consumption in the United 

States of methyl bromide— 

(I) for any use described in subparagraph 

(A)(i)(I) in response to an emergency event; and 

(II) in an amount necessary for such use. 

(ii) LIMITS ON USE PER EMERGENCY EVENT.—The 

amount of methyl bromide allowed pursuant to clause 

(i) for use per emergency event at a specific location 

shall not exceed 20 metric tons. 

(iii) LIMIT ON AGGREGATE AMOUNT.—The aggregate 

amount of methyl bromide allowed pursuant to clause 

(i) for use in the United States in a calendar year shall 

not exceed the total amount authorized by the parties 

to the Montreal Protocol pursuant to the Montreal Protocol process for critical uses in the United States in 

calendar year 2011. 

(C) INTERNATIONAL OBLIGATIONS.—The Administrator 

shall take such actions as may be necessary to carry out 

this paragraph in accordance with the Montreal Protocol. 

(D) RESEARCH.—For each calendar year, beginning with 

2013, the Administrator shall take all appropriate actions 

within the authority of the Environmental Protection Agency to ensure that sufficient quantities of methyl bromide are 

available for research on methyl bromide alternatives for 

the agricultural sector. 

(E) ADJUSTMENTS TO CRITICAL USE NOMINATIONS.—The 

Administrator shall review and, as appropriate, take action 

to adjust any critical use nomination that has been submitted to the Parties to the Montreal Protocol (for production, importation, or consumption of methyl bromide in the 

United States) if— 

(i) a methyl bromide alternative is removed from the 

United States market; and 

(ii) on the basis of the availability of such alternative, the Administrator denied, or reduced the 

amount requested under, any application for production, importation, or consumption of methyl bromide 

for the year covered by such nomination. 

(F) DEFINITIONS.—In this paragraph: 

(i) The term ‘‘approved critical use’’ means a use 

that— 

(I) as of January 1, 2005, was an approved critical use in appendix L to subpart A of part 82 of 

title 40, Code of Federal Regulations; or 


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(II) during the period following such date and 

ending on the date of enactment of this clause, was 

added as an approved critical use in such appendix. 

(ii) The term ‘‘critical use’’ means a circumstance in 

which— 

(I) there are no technically and economically feasible alternatives or substitutes for methyl bromide 

available that are acceptable from the standpoint 

of environment and health and are suitable to the 

crops and circumstances involved; and 

(II) the lack of availability of methyl bromide for 

a particular use would result in significant market 

disruption. 

(iii) The term ‘‘emergency event’’ means a situation— 

(I) that occurs at a farm, nursery, food processing facility, or commodities storage facility; 

(II) for which there is no critical use exemption 

in effect for such site, or for which there are not 

sufficient quantities of methyl bromide available 

under an existing critical use exemption for such 

site, as described in subparagraph (A); and 

(III) that requires the use of methyl bromide to 

control a pest or disease because there is no technically and economically feasible alternative to 

methyl bromide available for such use. 

* * * * * * * 


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1 U.S. Environmental Protection Agency, Protection of Stratospheric Ozone: Process for Exempting Critical Uses from the Phaseout of Methyl Bromide, 69 Fed. Reg. 76982 (Dec. 23, 2004) 

(final rule). 2 40 CFR 82.3. 

3 U.S. Environmental Protection Agency, Protection of Stratospheric Ozone: The 2012 Critical 

Use Exemption from the Phaseout of Methyl Bromide, 77 Fed. Reg. 29218 (May 17, 2012) (final 

rule). 

DISSENTING VIEWS 

The stated purpose of this bill is to ensure that American growers have access to methyl bromide where it is necessary for certain 

critical uses. However, the provisions of this bill will not achieve 

that purpose. The bill includes several counterproductive changes 

to the existing process for obtaining critical use exemptions that 

will undermine efforts to ensure that growers have methyl bromide 

for truly critical uses and reverse progress that has been made on 

phasing out the use of methyl bromide. 

I. CURRENT CRITICAL USE EXEMPTION PROCESS

Methyl bromide is an odorless, colorless, toxic gas that was once 

used as a soil fumigant and structural fumigant to control pests 

across a range of agricultural sectors. It is controlled as a Class I 

ozone-depleting substance under the Clean Air Act. In 1997, the 

Parties to the Montreal Protocol agreed to phase-out methyl bromide in industrialized countries by 2005 and in developing countries by 2015. In 2000, the Environmental Protection Agency (EPA) 

issued regulations to phase-out the production and consumption of 

methyl bromide on January 1, 2005, apart from allowable exemptions, such as the critical use exemption (CUE) and the quarantine 

and pre-shipment exemption. 

Article 2H of the Montreal Protocol established the critical use 

exemption and EPA established a critical use exemption process in 

2004.1 Under EPA rules, a ‘‘critical use’’ is defined as: 

a circumstance in which the following two conditions are 

satisfied: (1) There are no technically and economically 

feasible alternatives or substitutes for methyl bromide 

available that are acceptable from the standpoint of environment and health and are suitable to the crops and circumstances involved, and (2) The lack of availability of 

methyl bromide for a particular use would result in significant market disruption.2

Under this process, each year EPA solicits critical use exemption 

applications and ‘‘reviews the data submitted by applicants, as well 

as data from governmental and academic sources’’ to determine 

whether each application meets the critical use exemption criteria.3

EPA also analyzes ‘‘dosage and emissions minimization techniques 


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4 Id. 

5Technology and Economic Assessment Panel, Progress Report Volume One (May 2012) (online 

at http://ozone.unep.org/AssessmentlPanels/TEAP/Reports/TEAPlReports/ 

TEAPlProgresslReportlMayl2011.pdf). 6Montreal Protocol, Decision XXIII/4. 

7Technology and Economic Assessment Panel, Progress Report Volume One (May 2012) (online 

at http://ozone.unep.org/AssessmentlPanels/TEAP/Reports/TEAPlReports/ 

TEAPlProgresslReportlMayl2011.pdf). 8Montreal Protocol, Decision XXIII/4. 

and applicants’ research or transition plans.’’ 4 EPA consults with 

the U.S. Department of Agriculture (USDA) and other federal 

agencies that have regulatory authority related to methyl bromide. 

Based on this assessment and these consultations, the U.S. government develops its critical use nomination (CUN) for the control period two years in the future and submits its nomination to the 

Ozone Secretariat. 

Two advisory bodies to the Parties to the Montreal Protocol—the 

Methyl Bromide Technical Options Committee (MBTOC) and the 

Technology and Economic Assessment Panel (TEAP)—review each 

country’s CUNs and make recommendations to the Parties. The 

Parties then make decisions to authorize critical use exemptions to 

specify the amount of production and consumption of methyl bromide for each country. EPA subsequently allocates the U.S. critical 

use allowances among the applicants through a rulemaking. 

Consistent with the goals of the Montreal Protocol, the quantities 

of critical use exemptions for the United States have declined considerably since 2005. For 2005, the U.S. received critical use exemptions for 9,552 metric tons of methyl bromide.5 For 2013, the 

U.S. received critical use exemptions for 562 metric tons of methyl 

bromide.6 The U.S. stockpiles of pre-phase-out methyl bromide also 

have declined during this period—from 12,994 metric tons in 2004 

to 1,249 metric tons by the end of 2011.7

Despite this decline, the United States is by far the largest recipient of critical use exemptions. In 2013, only three other developed countries received CUEs: Australia received 32 metric tons, 

Canada received 13 metric tons, and Japan received 3 metric tons.8

With 562 metric tons, the United States received 92% of all CUEs. 

II. BILL SUMMARY: H.R. 6194, U.S. AGRICULTURAL SECTOR RELIEF

ACT OF 2012 

The bill would significantly alter the current CUE process, with 

results that are likely to be counterproductive. 

Section 2 amends section 604(h) of the Clean Air Act relating to 

the phase-out of methyl bromide. It requires the EPA Administrator, for each year beginning in 2013, to seek a critical use exemption under the Montreal Protocol in order to allow the production, importation, and consumption of methyl bromide for any approved critical use in the amount necessary for that use. The term 

‘‘approved critical use’’ is defined as the regulatory list of approved 

critical uses in effect on January 1, 2005, plus the approved critical 

uses added to the regulatory list since January 1, 2005. The Administrator is prohibited from denying or reducing the amount requested in any application for a critical use exemption unless the 

Administrator has ‘‘substantial evidence’’ to establish that there is 

a technically and economically feasible alternative available to the 


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applicant for the use of methyl bromide for which the application 

was submitted. 

This provision would shift the burden on EPA to prove that a requested critical use exemption is unwarranted. Currently, an applicant for a CUE is required to provide data demonstrating that such 

an exemption is warranted. By eliminating rigorous EPA analysis 

of a CUE application, the provision may reduce the ability of EPA 

and the U.S. government to support its critical use nomination at 

the annual Meeting of the Parties to the Montreal Protocol. 

Moreover, the provision reinstates the list of approved critical 

uses in effect on January 1, 2005, and makes that outdated list 

permanent in law. An amendment offered by Rep. Whitfield during 

the July 19, 2012, Subcommittee markup establishes that the list 

of approved critical uses only reflects additions to the list since that 

date, not subtractions from the list. Under the bill, there can be no 

future additions to or subtractions from the list. As a result, sectors 

that may have a legitimate need for methyl bromide could be prevented from obtaining a CUE under the bill. 

In addition, sectors that have completely phased-out the use of 

methyl bromide during the last seven years would be permitted to 

use methyl bromide again under this provision. For example, golf 

courses would once again be allowed to seek critical use exemptions 

for methyl bromide. The bill would reinstate critical uses for sectors that have not even submitted requests for methyl bromide in 

years. Michigan growers have not applied for a critical use exemption since 2007. Tobacco growers sought a critical use exemption in 

2006, but did not seek methyl bromide for any of the years between 

2007 and 2014. By allowing sectors that have successfully 

transitioned to alternatives to revert to methyl bromide, this provision goes well beyond the stated purpose of the bill. 

At the full Committee markup, Rep. Waxman offered an amendment to fix the problem of freezing an outdated list of critical uses 

in law. Under his amendment, the bill’s list of approved critical 

uses would be aligned with the latest regulatory list. If that list is 

changed to add new uses or to take off sectors that no longer need 

methyl bromide, those changes would be reflected in the bill’s definition. That approach would provide the regulatory flexibility to 

take into account changing circumstances and new information. It 

also would avoid the result of re-introducing methyl bromide to sectors that have successfully transitioned to alternatives that do not 

deplete the ozone layer. Rep. Waxman’s amendment was defeated 

by voice vote. 

Section 2 of the bill also requires EPA, for each year beginning 

in 2013, to allow the production, importation, and consumption of 

methyl bromide for any use in response to an ‘‘emergency event’’ 

in an amount necessary for such use. An ‘‘emergency event’’ is 

broadly defined as a situation (1) where there are not sufficient 

quantities of methyl bromide available and (2) that requires the 

use to control a pest or disease because there is no technically and 

economically feasible alternative available. The provision does not 

specify who determines if sufficient quantities of methyl bromide 

are available. The amount of methyl bromide allowed per emergency event at a specific location is limited to 20 metric tons. The 

aggregate amount of methyl bromide allowed for emergency events 


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9Michelle Castellano Keeler, Vice President of Mellano & Company, Committee on Energy 

and Commerce, Subcommittee on Energy and Power, Legislative Hearing on H.R.ll, the U.S. 

Agricultural Sector Relief Act of 2012, and H.R.ll, the Asthma Inhalers Relief Act of 2012, 

112th Cong. (Jul. 18, 2012). 

in the United States in a year is limited to the amount of critical 

use exemptions authorized by the parties to the Montreal Protocol 

for the U.S. in 2011, which was 2,055 metric tons. This is about 

four times the amount of methyl bromide for which the United 

States received CUEs for 2013. 

This ‘‘emergency event’’ provision is so broadly drafted that it 

could create a major loophole in the critical use exemption process. 

Currently, a Montreal Protocol decision allows for the use of methyl 

bromide without a CUE in genuine emergencies, but this emergency exemption has been invoked only twice (once by Australia 

and once by Canada). Under the bill, any time an applicant does 

not obtain a CUE or uses up all of its allotted methyl bromide 

under a CUE, it could potentially trigger this ‘‘emergency event’’ 

procedure to obtain up to 20 metric tons of methyl bromide. The 

language of the provision does not rule out routine reliance on this 

‘‘emergency event’’ procedure by current or past users of methyl 

bromide. According to testimony received at the July 18, 2012, legislative hearing, some growers would use the bill’s ‘‘emergency 

event’’ procedure to obtain methyl bromide for this type of planned, 

routine application. For example, a witness testifying on behalf of 

the Society of American Florists argued that growers should be allowed ‘‘to develop an ‘emergency cleanup process’ that will allow us 

to go into our fields every few years and clean up the pests and 

diseases’’ with methyl bromide.9

In addition, pursuant to an amendment offered by Rep. Whitfield 

during the July 19, 2012, Subcommittee markup, section 2 requires 

EPA to review and, as appropriate, take action to adjust any critical use nomination that has been submitted to the Parties of the 

Montreal Protocol if (1) a methyl bromide alternative is removed 

from the U.S. market and (2) on the basis of the availability of 

such alternative, EPA denied, or reduced the amount requested 

under, any application for a critical use exemption for the year covered by the nomination. This provision creates the potential for litigation regarding the content of the U.S. nomination to the Montreal Protocol. Such litigation could prevent the U.S. government 

from submitting timely critical use nominations. Requiring EPA to 

adjust previously-submitted critical use nominations, potentially 

after the deadline for submission of critical use nominations, could 

also delay or complicate the review of U.S. critical use nominations 

by the MBTOC and Parties of the Montreal Protocol. This could 

have a detrimental effect on the ability of growers who have a legitimate need for methyl bromide to obtain CUEs. 

For the reasons stated above, we dissent from the views contained in the Committee’s report. 

HENRY A. WAXMAN. 

BOBBY L. RUSH. 

Æ 


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