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SUMMARY OF PUBLIC COMMENTS FOR 

THE NOTICE OF PROPOSED RULEMAKING:

THE 2007 CRITICAL USE EXEMPTION FROM THE PHASEOUT 

OF METHYL BROMIDE

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

ADJUSTMENTS TO CRITICAL USE AMOUNTS................................................................................................2

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

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

2. SUMMARY OF COMMENTS RELATING TO CRITICAL NEED FOR METHYL BROMIDE.........10

2.A. MARKET TRANSITION TO SULFURYL FLUORIDE........................................................................................10

2.B. ADOPTION OF OTHER ALTERNATIVES .................................................ERROR! BOOKMARK NOT DEFINED.

3. SUMMARY OF COMMENTS RELATING TO EMISSIONS MINIMIZATION ...................................23

4. SUMMARY OF COMMENTS RELATING TO CRITICAL USE ALLOWANCE ALLOCATIONS...26

5. SUMMARY OF COMMENTS RELATING TO TOTAL VOLUMES OF CRITICAL USE METHYL 

BROMIDE..................................................................................................................................................................27

6. SUMMARY OF COMMENTS RELATING TO INVENTORY OF METHYL BROMIDE ...................30

6.A. PROPOSED INCREASED INVENTORY RELIANCE..........................................................................................30

6.B. PROPOSED STRATEGIC INVENTORY...........................................................................................................35

6.C. ACCOUNTING FOR INVENTORY AND DISCLOSURE OF INVENTORY INFORMATION .....................................37

7. SUMMARY OF COMMENTS RELATING TO RULEMAKING AND THE REGULATORY 

PROCESS...................................................................................................................................................................38
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1. Summary of Comments Relating to the PROPOSED CRITICAL USES 

AND ADJUSTMENTS TO CRITICAL USE AMOUNTS 

1.a. Proposed Critical Uses 

Commenter Organization Document ID No 

Doug Sharp Plum Creek 0106 

Dr. Scott Enebak Southern Forest Nursery Management Cooperative 0107 

Tom Anderson Plum Creek Shubuta Nursery 0109 

Ken McQuage Plum Creek Timber Co. – Pearl River Nursery 0110 

Gene Harrington National Pest Management Association 0134 

Glen Fischer California Pepper Commission 0135 

• Four commenters state that the Members of the Southern Forest Nursery Cooperative were 

not listed as Approved Critical Users, even though other consortium members were listed as 

in previous rules. The commenters request that the proposed rule be amended to reflect the 

previous critical use exemption (CUE) Rules for Approved Critical User and Location of 

Use, which was: 

-“Approved Critical Use: Forest Nursery Seedlings” 

-“Approved Critical User and Location of Use: Members of the Southern Forest 

Nursery Management Cooperative limited to growing locations in Alabama, Arkansas, 

Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South 

Carolina, Tennessee, Texas and Virginia.” [0106, 0107, 0109, 0110] 

Response: EPA agrees with some of the changes proposed by the Southern Forest Nursery 

Management Cooperative. The Cooperative filed a critical use exemption application with EPA 

and the forest seedling sector was approved by the Parties as an agreed critical use category for 

2007. Therefore, EPA is correcting the Table of Approved Critical Users to reflect this 

consortium. However, EPA is not adding the state of Kentucky. To qualify as an “approved 

critical user” under the definition at 40 CFR 82.3, an entity must be a member of a consortium 

“that applied to EPA for a critical use exemption for a use and location of use that was included 

in the U.S. nomination” and that satisfies other criteria. In this instance, however, the application 

did not include Kentucky as a “location of use” and Kentucky was not a member of the 

consortium at the time of application. 

• One commenter requests that EPA change the wording on p. 38346 of its proposed 

description of NPMA as a critical user from: 

“Members of the National Pest Management Association associated with dry commodity 

structure fumigation (cocoa) and dry commodity fumigation (processed food, herbs and 

spices, dried milk and cheese processing facilities).” 

to: 
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“Members of the National Pest Management Association treating cocoa beans in storage and 

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

and spaces and equipment in associated processing facilities.” [0134] 

Response: EPA agrees with the commenter and has incorporated this suggestion in the Final 

Rule, because it clarifies that commodities shall be fumigated as part of space fumigations. 

1.b. Limiting Critical Conditions 

Commenter Organization Document ID Number 

David Doniger Natural Resources Defense Council 0122, 0122.1 

John B. Mueller Fumigation Service & Supply, Inc. 0127, 0127.1 

Bruce Houtman Dow AgroSciences LLC 0132, 0132.1, 0132.2 

Craig Weyandt Florida Golf Course Superintendents 

Association 0133 

• Two commenters address the “market disruption” condition required by Decisions IX/6, 

XVI/2, and Ex. II/1: 

− One commenter believes that the proposed rule lacks the market disruption finding, 

noting that, according to the Decisions, “uses cannot qualify as ‘critical’ unless the 

nominating party has established that ‘the lack of availability of methyl bromide for that 

use would result in a significant market disruption.’” The commenter believes that EPA 

does not provide “meaningful support” for its claims of market disruption. [0122] 

Response: Parties to the Protocol have considerable discretion in their application of the 

“significant market disruption” concept. The preamble to the Final Rule discusses EPA’s 

application of the significant market disruption concept. EPA’s Office of Pesticide Programs 

(OPP) conducts the analytical basis for EPA’s critical use nominations (CUN) to the Protocol. 

These nominations include a thorough sector-specific analysis of the economic feasibility of 

methyl bromide alternatives. Factors considered in these economic analyses include yield losses, 

market windows and crop rotations. The 2007 CUN chapters are available on the docket for this 

rule (EPA-HQ-OAR-2005-0538). In general, for sectors in which EPA determines that no 

economically feasible alternatives are available, EPA infers that the absence of methyl bromide 

would result in a significant market disruption. EPA’s interpretation of economic feasibility is 

included in the memorandum entitled “Development of 2003 Nomination for a Critical Use 

Exemption for Methyl Bromide for the United States of America,” available on the docket for 

this rulemaking (EPA-HQ-OAR-2005-0538). The Methyl Bromide Technical Options 

Committee (MBTOC) thoroughly reviews EPA’s economic analysis in the CUNs. 

− One commenter states that the CUE application for the Florida Golf Course 

Superintendents Association (FGCSA) was rejected because of a failure to demonstrate 

that the loss of methyl bromide would result in a market disruption. The commenter 

believes that the term “market disruption” is undefined by EPA and states that the 

product of the golf industry is the playing field rather than a crop yield. [0133] 

Response: Supporting technical and economic data are required for securing critical use 

exemptions. After a lengthy review of the FGCSA application and subsequent requests for 
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additional information, EPA economists were unable to support the argument that a significant 

market disruption would occur if golf courses included in the FGSCA application were unable to 

use methyl bromide. An important part of EPA’s determination was that it did not find that a 

lack of methyl bromide would result in significant revenue losses for the golf course industry. 

EPA did nominate 78,040 kg of critical use methyl bromide for 254 hectares of sod turfgrass 

production. Methyl bromide was only nominated for use in production of certified sod. The 

price of non-certified sod is roughly 75% lower than certified sod. EPA did not find that a lack 

of methyl bromide would cause a significant market disruption in the non-certified sod market. 

Similarly, EPA has not found that a lack of methyl bromide would create a significant market 

disruption in the golfing industry, because it did not find a strong link between methyl bromide 

use and golf industry revenues. Subsequently, FGCSA has offered to provide EPA with survey 

information about the relationship between demand for golf and poor course conditions. EPA 

will continue to consider all relevant information for future nominations. 

• One commenter states that it is unclear what objective basis EPA uses to determine when and 

how much “time to transition” to an alternative is required. According to the commenter, 

users already know which alternatives work for them, but there is no incentive to change 

when methyl bromide is readily available. The commenter believes that the 15% transition 

rate does not reflect the reality of the market’s ability to transition and recommends that a 

more rapid, expedited transition rate be established to quickly reduce reliance on methyl 

bromide. [0132.1] 

Response: In the 2006 Final Rule (71 FR 5989), a transition range of 12%-18% was estimated 

for sulfuryl fluoride for each structural sub-sector. This projection was based on the 2008 

Bromide Usage Newer Numerical Index (BUNNI), which was completed in January 2006. To 

gather additional information, on August 23, 2006 EPA issued additional data requests under 

Sec. 114 of the Clean Air Act to a small sample of flour millers and fumigant applicators that are 

familiar with sulfuryl fluoride and its efficacy. EPA will continue to seek the best available data 

regarding the economic and technical feasibility of alternatives and to integrate this data into its 

transition rate estimates. 

- The commenter also recommends that EPA properly define key terms such as 

“technical feasibility,” “economic feasibility,” and “significant market disruption.” 

The commenter believes that until there are domestic definitions for these terms, 

stakeholders will not understand the basis for which the U.S. has and will make CUE 

decisions, and the process will lack transparency. For guidance, the commenter 

suggests that Canadian definitions for these terms could be employed. [0132.1] 

Response: EPA has not established a generic definition of “technical feasibility.” This is partly 

due to the wide range of sectors that participate in the CUE application process. EPA’s 

understanding is that Canada also lacks a generic definition of technical feasibility. For more 

information on how technical feasibility is assessed during the domestic review process, and the 

methodology employed by the Office of Pesticide Programs during the review of CUE 

applications, please refer to the detailed memorandum entitled “Development of 2003 

Nomination for a Critical Use Exemption for Methyl Bromide for the United States of America,” 

available on the docket for this rulemaking (EPA-HQ-OAR-2005-0538). This memo also 
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discusses EPA’s application of the economic feasibility and significant market disruption 

concepts. 

Parties have significant discretion in their application of the significant market disruption 

concept. Canada has defined “significant market disruption” as “the loss of an industry sector or 

production sector (e.g. one crop), not just the loss of one company or facility, unless a single 

company represents a large portion of the market.”1 EPA agrees that given the discretion granted 

to Parties under the Protocol, the U.S. could adopt Canada’s definition, but the U.S. is not 

required to do so. EPA conducts a thorough sector specific analysis of economic feasibility in its 

critical use nominations (CUNs), which are publicly available on the docket for this rule making 

(EPA-HQ-OAR-2005-0538). Stakeholders are encouraged to consult the memo mentioned 

above, and past CUNs for a better understanding of how EPA applies these concepts. 

- The commenter further recommends that EPA ensure accuracy and validity of all 

limiting critical condition claims by requiring methyl bromide critical users to 

provide documentation which forms the basis for the “reasonable expectations” that 

these conditions may arise. [0132.1] 

Response: EPA uses the reporting and recordkeeping requirements published in the Framework 

Rule (69 FR 76982) to ensure the accuracy and validity of information pertaining to limiting 

critical conditions. The Framework Rule also details the penalties for end-users, producers, 

importers, distributors, and applicators who do not follow the reporting requirements. 

Pre-Plant Uses 

• One commenter addresses the EPA-approved change in the karst label restrictions for 

1,3-D products (i.e., the change in the restriction from a regional to site-specific 

limitation or prohibitions of product use in areas overlying karst topography compared to 

karst geology), as well as the series of 2005 MBTOC questions and U.S. government 

responses referred to in the proposed rule. In summary, the commenter states that the 

U.S. government attempted to evaluate the impact of the 1,3-D karst restriction label 

change approved by EPA in 2006 before the change was approved, and thus failed to 

predict, and therefore accommodate, the most important aspects of the change. The 

commenter states that as a result of this change, the only remaining methyl bromide 

critical use nomination (CUN) justification associated with a 1,3-D karst restriction 

would be for applications that occur closer than 100 feet to the land features. According 

to the commenter, this restriction affects a much smaller percentage of agricultural land 

than the 8% to 40% claimed in the 2007 methyl bromide CUN. Therefore, the commenter 

requests that: a) the 1,3-D karst restriction be removed from the proposed 2007 methyl 

bromide allocation rule as a limiting critical condition; and b) that the U.S. Government 

conduct a post-hoc evaluation of this regulatory change and its impact on the amount of 

methyl bromide that is exempted from phaseout in the relevant use categories. [0132.1] 

Response: EPA correctly anticipated that the label would change from restricting 1,3-D use over 

karst geology, which underlies virtually all of Florida, to karst topographical features such as 

 

1 Methyl Bromide Industry/Government Working Group, “Canada’s Process and Criteria for the Evaluation of 

Exemptions for Critical and Emergency Uses of Methyl Bromide,” 

http://www.ec.gc.ca/ozone/DOCs/SandS/mbr/EN/EX/index.cfm#FN2, Accessed November 13, 2006 
-6- 

sinkholes, caverns, springs and sinking streams. In anticipation of this label change, EPA 

conducted studies with officials from the State of Florida to estimate the extent of area affected 

by karst topographical features, and what proportion of that land contains commercial operations 

that would, as a result, need critical use methyl bromide. EPA’s assessment did not consider the 

100-foot buffer that was part of the label change. However, EPA considers critical use methyl 

bromide requests on an individual basis, but the U.S. nominates according to sector; therefore a 

post-hoc evaluation of this regulatory change, as requested by the commenter, would not have a 

substantial impact on the 2007 critical use exemption. The karst label restriction is only one of 

the limiting critical conditions for growers in the Southeast U.S. For example, a grower that may 

have been inaccurately assumed to be in a karst restricted area may still have yellow and purple 

nutsedge, nematodes, disease infestation and California geranium or cut-leaf evening primrose 

infestation, all of which are listed as limiting critical conditions in Table I of the preamble to the

Final Rule. 

In addition, the 100-foot buffer is not the only use restriction on the new 1,3-D label. There is a 

24(c) registration for additional 1,3-D use restrictions in 31 Florida counties. These restrictions 

include: 1) "...use on soils that have a relatively shallow hard pan or soil layer restrictive to 

downward water movement (such as spodic horizon) within 6 feet of the ground surface and 

capable of supporting seepage irrigation..."; 2) inject as deep as possible but avoid subsurface 

irrigation water; 3) Must have Restricted Use Pesticide license to apply. 

For the reasons discussed above, EPA does not find it necessary to redo the 2007 CUE analysis, 

but the Agency is taking appropriate steps to update and further quantify its analysis of karst 

label restrictions. 

- This commenter also requests the removal of the following limiting critical conditions 

for pre-plant use since effective alternatives to methyl bromide are available: 

Moderate to severe yellow or purple nutsedge infestation – The commenter states that 

Sandea, Envoke and Dual Magnum, and metam-sodium, Treflan, and Devrinol

when used in combination with 1,3-D, have proven effective for nutsedge control in 

tomato, pepper and other crops. 

Response: As the 2007 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 Southeastern 

U.S.

Moderate to severe nematode infestation – The commenter states that 1,3-D is widely 

recognized as a highly effective nematicide, and its value has been demonstrated on 

numerous crops for more than 40 years. 

Response: As the 2007 CUN explains, methyl bromide is the only option to effectively control 

the target pests, which includes nematodes, found in the Southeastern U.S. where pest pressures 

commonly exist at moderate to severe levels. In the California strawberry sector, nematodes are 
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among the target pests that must be controlled with methyl bromide at moderate to severe 

pressure. Methyl bromide applications in California are typically made at 67:33, or where 

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

California strawberry sector has consistently reduced its methyl bromide requests since the 

inception of the CUE program. 

Moderate to severe fungal disease infestation – The commenter states that Chloropicrin, 

either alone or in combination with other products including 1,3-D, is a viable methyl 

bromide alternative that has demonstrated excellent control of soil-borne pathogens on 

numerous crops. 

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

pathogens in certain circumstances. However, there are circumstances in which methyl bromide 

is the only feasible option to control fungal disease infestation. For example, orchard replant into 

previously planted orchard land (the typical situation in California) requires reducing pathogen 

populations (mostly nematodes and fungi) and nutrient sources of previous orchard tree roots and 

root remnants. This requires an effective material that is volatile and can penetrate into the soil 

to reach these plant materials. In sandy, loam soils, where restrictions do not apply, metamsodium and 1,3-D may be an acceptable alternative that can penetrate to the target areas. In 

other situations, this compound and other alternatives are not able to move sufficiently through 

the soil to remove the problem pests. Thus, there is currently a critical need for MeBr in this 

situation. The infrequent use of methyl bromide for orchard replant and the positive benefits of 

vigorous early tree growth make methyl bromide a key component of orchard fruit and nut 

production in areas where alternative methods are not effective. There are similar situations for 

other pre-plant sectors which are described in more detail in the 2007 CUN and 2008 CUN. 

- This commenter also discusses the following two pre-plant limiting critical 

conditions: 

Occupied structures – According to the commenter, this condition is likely relevant only 

to the affected fraction and not the complete field. The commenter also believes that 

local buffer zone requirements like those imposed by the California Dept. of Pesticide 

Registration (CADPR) alter the status and meaning of “Occupied Structures” as a 

limiting critical condition. 

Response: The 2007 CUN explains that U.S. estimates of the area affected by 100 foot buffer 

zones are based on data from applicants and alternatives manufacturers and include many 

factors. For example, the eastern U.S. has many small “pick-your-own” strawberry farms (less 

than 4 hectares) where the impact of a 30 meter buffer is more pronounced than on the larger 

farms in California or Florida. Because of the significant impact that these estimates have on the 

overall request for methyl bromide, EPA is evaluating additional methods to further substantiate 

and quantify the impacts of buffer zones. 

Township limits – Using the CADPR’s “California Management Plan: 1,3-

Dichloropropene” as an example, the commenter states that the township limits on 1,3-D 

usage only become a limiting condition if the 1,3-D allocation limit within the given 

control year has been met for the particular township/range relevant to the specific 

critical user. The commenter also states that since the institution of the plan in 2002, there 
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have been less than 8 instances where growers within specific townships in California 

have been unable to use 1,3-D products due to township cap allocations. [0132.1] 

Response: 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. 

Post-Harvest uses 

• Two commenters recommend that the limiting critical conditions described below be 

removed as they are no longer relevant. [0127.1, 0132.1]. One commenter states that since 

the preparation of the 2007 CUNs, ProFume has superseded heat and phosphine as the 

preferred alternative in post-harvest use categories. [0132.1] 

Response: Although phosphine does kill insects, it is corrosive to metals, especially copper and 

its alloys, bronze and brass. These metals are important components of the electronics that run 

the manufacturing equipment. Phosphine requires longer application time, which can be a severe 

economic concern for producers trying to meet key market windows. Resistance to phosphine 

has also been reported for several stored product pests. Despite these concerns, EPA is pleased 

that phosphine is used in areas without electronics and where temperature is not a factor. 

Sufficiently high temperatures will kill insects given enough time; but heat sources are not a 

feasible option in all areas of the United States. Heat also causes rancidity in butters and oils and

denatures proteins. EPA has determined that heat is being used in areas where it is feasible. 

Section 2.a. of this document discusses the efficacy of sulfuryl fluoride. 

Older structures that can not be properly sealed – According to two commenters, the 

efficacy of different fumigants does not vary based on the quality of sealing and so a 

structure not capable of effective sealing has similar limitations whether fumigated with 

methyl bromide or an alternative. The commenters further state that sulfuryl fluoride has 

worked well in the fumigation of older structures. [0127.1, 0132.1] One commenter states 

that proper sealing is a “label requirement” of methyl bromide and that older structures 

that cannot be sealed well should not be fumigated at all due to the potential risk to 

bystanders. [0127.1] 

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

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

and extend the time between fumigations. Meanwhile, EPA has encouraged all applicants to seal 

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

of wood, experience more frequent and severe pest infestations that must be controlled by some 
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type of fumigation. In facilities where mites are present, such as in ham and cheese processing 

facilities, methyl bromide must be used, even if the structure is properly sealed, because mites 

are not on the sulfuryl fluoride label. Facilities using methyl bromide are always required to 

follow regulatory guidelines to protect bystanders.

Presence of sensitive electronic equipment subject to corrosivity – Two commenters 

believe that this criterion exists only to address the alternative fumigant, phosphine. They 

note that ProFume is not corrosive to sensitive electronic equipment and since it is 

approved for post-harvest use, this condition should not be a criterion for determining 

access to methyl bromide under the proposed rule. [0127.1, 0132.1] 

Response: The corrosive nature of phosphine is one of the reasons that methyl bromide is still 

necessary in some instances. Reductions in post-harvest critical use allowances made in the 

Final Rule account for the uptake of ProFume (a fumigant product consisting of sulfuryl 

fluoride). 

Rapid fumigation – One commenter states that ProFume is capable of performing rapid 

fumigations to the same extent as methyl bromide and this criterion should thus be 

removed from the proposed rule. [0132.1] 

Time to transition to an alternative – One commenter states that 10 years has been an 

adequate amount of time to transition to alternatives. [0127.1] 

Response: EPA’s numerical analysis of sulfuryl fluoride can be found in the 2008 BUNNI, 

available on the docket for the Final Rule (EPA-HQ-2005-0538). EPA continues to collect 

information regarding the efficacy of sulfuryl fluoride. For example, in August 2006 the Agency 

received information, using its information collection authority under Section 114 of the CAA, 

from a sample of millers and fumigant applicators who have experience with sulfuryl fluoride 

and its efficacy. Sulfuryl fluoride is discussed in more detail in Section 2.a. of this document. 

While EPA continues to support the transition to methyl bromide alternatives it does not support 

an artificial deadline for the phase-out of critical use methyl bromide. The Montreal Protocol 

continues to allow for methyl bromide use when there are no technically or economically 

feasible alternatives. This is emblematic of the pragmatic nature of the Protocol, which has 

contributed to its great success. 

- The same commenter also states that the proposed rule does not reflect the August 

2006 EPA report titled “Tolerance Reassessment Report of Food Quality Protection 

Act (FQPA) Tolerance Reassessment and Risk Management Decision (TRED) for 

Methyl Bromide, and Reregistration Eligibility Decision (RED) for Methyl 

Bromide’s Commodity Uses.” According to the commenter, in this document, the 

EPA calls for additional regulatory restrictions on all uses of methyl bromide in the 

post-harvest use category, including buffer zones and reduced use rates. [0132.1] 

Response: The comment period for the methyl bromide TRED and RED was extended to 

November 24, 2006 (71 FR 57505), and EPA is now reviewing the comments received. 

Therefore, it would be inappropriate for EPA to consider the TRED and RED in the Final Rule. 

EPA’s Office of Pesticide Programs (EPA/OPP) is the lead EPA program office for the re-
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registration of methyl bromide as well as the methyl bromide CUNs. EPA/OPP will consider the 

impacts of the methyl bromide re-registration in future CUNs. 

2. Summary of Comments Relating to CRITICAL NEED FOR METHYL 

BROMIDE 

2.a. Market Transition to Sulfuryl Fluoride 

Commenter Organization Document ID Number 

James Bair North American Millers’ Association 0112, 0112.1 

Betsy Peterson CA Bean Shippers Association 0113 

David A. Shorr Lathrop & Gage L.C. 0114 

None Albemarle Corporation 0116, 0116.1 

Stephen Payne Pet Food Institute 0118 

Pamela Peckman The Industrial Fumigant Company 0119

Nancy Sandrof American Chemistry Council 0120, 0120.1 

Mark Reddick Reddick Fumigants, Inc. 0121, 0121.1 

David Doniger Natural Resources Defense Council 0122, 0122.1 

Miguel Cea AG-Fume Service, Inc. 0123 

Marcy Martin CA Grape & Tree Fruit League 0126 

John B. Mueller Fumigation Service & Supply, Inc. 0127, 0127.1 

David Culp Dickson Chemical Co., Inc. 0128, 0128.1 

Jim Garrett Fume Tech, Inc. 0129, 0129.1 

Jack Coleman, Jr, Jeff Coleman, 

Stephen Roy, Keith Alvis Research Fumigation Company, LLC 0130, 0130.1 

Roberta Firoved CA Rice Commission 0131, 0131.1 

Bruce Houtman Dow AgroSciences LLC 0132, 0132.1, 0132.2 

David McAllister Chemtura Corporation 0136 

Lynn Bragg Chocolate Manufacturers Association 0137, 0137.1 

Suresh Prabhakaran Dow AgroSciences LLC 

0138, 0138.1, 0138.10, 

0138.13, 0138.14, 

0138.15, 0138.17, 

0138.18, 0138.19, 

0138.2, 0138.20, 

0138.21, 0138.22, 

0138.23, 0138.24, 

0138.25, 0138.26, 

0138.3, 0138.4, 0138.5, 

0138.6, 0138.9 

Edward Ruckert McDermott, Will & Emery for the Crop Protection 

Coalition 0139 

Dennis Balint CA Walnut Commission 0140, 0140.1 

Steve Hensley USA Rice Federation 

0141, 0141.1, 0141.2, 

0141.3, 0141.4, 0141.5, 

0141.6, 0141.7, 0141.8 

Amy Schaffer Weyerhaeuser Company 0142 

William Goodrich United Agribusiness League 0146 

William Murray American Forest & Paper Association 0149 

• Nine commenters believe that EPA’s proposed 12% to 18% transition rates for sulfuryl 

fluoride in post-harvest sectors are too high and that therefore post-harvest methyl bromide 
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allocation cuts made “to reflect the continuing transition to sulfuryl fluoride” are premature. 

[0112.1, 0113, 0114, 0116.1, 0118, 0119, 120.1, 0121, 0123, 0136] 

Response: In the Final Rule EPA reduced the total volume of critical use methyl bromide by 

53,703 kilograms to reflect the continuing transition to sulfuryl fluoride. The Agency based the 

reductions on data contained in the 2008 BUNNI, which was submitted to the Ozone Secretariat 

in January 2006 and is available in the docket for this rule. EPA believes that the 2008 CUN still 

represents the best available data on the transition to sulfuryl fluoride. 

− Four commenters cite the Motion of Stay of the Effectiveness of Sulfuryl Fluoride 

Tolerances in the U.S. (EPA-EPA-HQ-2005-0174-0013) to back the assertion that it is 

“premature” for the EPA to rely on sulfuryl fluoride. [0113, 0114, 0118, 0121] 

− One commenter states that the regulatory and legal challenges behind the stay address 

violations of the FFDCA, APA, and FQPA, which, if successful, could prevent the use of 

sulfuryl fluoride as a pesticide for at least a portion of 2007. [0116.1] Another 

commenter states that the establishment of tolerances for the use of sulfuryl fluoride on 

food commodities under the FFDCA is being challenged. [0120.1] An additional 

commenter also states that the regulatory status of sulfuryl fluoride is currently being 

challenged. [0112.1] 

Response: If a stay is imposed on the effectiveness of pesticide tolerances for sulfuryl fluoride 

and fluoride promulgated in January 2004 and July 2005, EPA will adjust its analysis of methyl 

bromide CUEs accordingly. As of the date of signature on the Final Rule, no final action has 

been taken on the request for a stay of tolerances; therefore, the Final Rule assumes that the 

tolerances will remain effective. 

− One commenter states that data collection on the efficacy of sulfuryl fluoride in 

comparison to methyl bromide is just beginning this year and will continue over the next 

3 years. The commenter requests that the EPA not make additional cuts in methyl 

bromide allocation until the potential alternatives have been thoroughly studied. The 

commenter provides multiple supporting documents. [0112.1] 

Response: Critical use methyl bromide reductions to account for the uptake of sulfuryl fluoride 

are based on EPA’s analysis in the 2008 BUNNI, which represents the best available data on the 

transition to sulfuryl fluoride. Since the 2008 CUN was published in February 2005, EPA has 

collected additional data on the efficacy of sulfuryl fluoride as a post-harvest fumigant. Most 

recently, in August 2006 EPA gathered additional data about sulfuryl fluoride use from a sample 

of millers and fumigators under the authority of Sec. 114 of the Clean Air Act. The reductions in 

the Final Rule reflect EPA’s determination that the Agency’s current understanding of sulfuryl 

fluoride is strong enough to estimate the transition rate to this potential methyl bromide 

alternative. The Agency will continue to collect information to update and strengthen its 

analysis of sulfuryl fluoride. 
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− One commenter states that it is unclear whether EPA is still attempting to calculate the 

expected market uptake of sulfuryl fluoride, but that this should be feasible based on 

required reported data on the use of methyl bromide. The commenter also states that in 

2004 “EPA stated that it would take up to 5 fumigation cycles of use before the efficacy 

of sulfuryl fluoride could be determined in the specific circumstances of the user.” The 

commenter additionally requests that EPA identify the specific post-harvest uses to which 

the 12% to 18% estimation was applied. [0120.1] 

Response: EPA is attempting to calculate the expected market uptake of sulfuryl fluoride. 

Reported data on past sales of critical use methyl bromide is one type of data available to the 

Agency, but other data sources can be useful in projecting future uptake of alternatives. 

Comments submitted to the docket for the Final Rule have been helpful in this regard. Most 

recently, in August 2006 EPA gathered additional data about sulfuryl fluoride use from a sample 

of millers and fumigators under the authority of Sec. 114 of the Clean Air Act. One purpose of 

this data collection was to estimate market uptake. EPA will consider this data in future 

rulemakings. While the Sec. 114 data consisted of a small sample, and the responses were all 

claimed confidential by the responding entities, the variation in responses generally supported 

the assumptions made in developing the 2008 BUNNI. For example, while some users have had 

success with sulfuryl fluoride, others experienced increased costs because they used larger 

volumes of gas. However, before the BUNNI can be adjusted further, additional data is required 

with regard to the cost of fumigating with sulfuryl fluoride, the volume of gas required in each 

sub-sector, and the ability of sulfuryl fluoride to generate effective kill at egg stages. 

To clarify, the 12-18% transition rate that the commenter refers to is an annual transition rate for 

post-harvest food processing facilities, and considers all registered chemical and non-chemical 

alternatives, one of which is sulfuryl fluoride. The 12-18% transition rate is an annual rate. For 

example, as the 2008 BUNNI shows, EPA estimates that the North American Millers can 

transition 58% of their current critical use methyl bromide consumption to alternatives, with a 

12% per year rate of transition. In addition, EPA also notes that the post-harvest sector is not the 

only sector in which the 2008 BUNNI considers transitions to registered chemical and nonchemical alternatives. For example, the BUNNI includes a 5% per year transition rate for 

Florida strawberries and a 4% annual transition rate for Georgia eggplant. 

EPA applied the 12% to 18% annual transition rate referred to in the Final Rule to the following 

post-harvest sub-sectors: processed foods (17%), spices/herbs (17%), cocoa (17%), rice millers 

(18%), pet food (15%), bakeries (14%), and NAMA (12%). These transition rates were 

calculated in the 2008 BUNNI, which is available in the docket to this rule (EPA-HQ-OAR2005-0538). 

− One commenter states that too many concerns about sulfuryl fluoride exist for it to be 

situated to become a viable alternative to methyl bromide. [0123] 

Response: EPA accounted for concerns with sulfuryl fluoride in the 2008 CUN and 2008 

BUNNI. Current obstacles to the uptake of sulfuryl fluoride are also discussed below in this 

document.
-13- 

• One commenter states that adjustments for the use of sulfuryl fluoride were already 

taken into account in the initial 2007 CUE applications, and does not understand why 

EPA increased expectations of sulfuryl fluoride use from those numbers. The 

commenter also states that current sulfuryl fluoride use is being substantially 

subsidized by the manufacturer and that additional investigation and analysis to 

determine the economic feasibility of the product is needed. [0139] 

Response: The CUE reductions EPA is making for the use of sulfuryl fluoride are based on the 

data contained in the 2008 CUN, which is available on the docket for the Final Rule (EPA-HQOAR-2005-0538). This analysis still represents the best available data on the transition to 

sulfuryl fluoride, including factors such as potential obstacles in the export of treated 

commodities. EPA understands that the 2007 CUE applications adjusted for sulfuryl fluoride to 

some degree. The Agency used the applications as a valuable source of information to start the 

2007 CUE allocation process. Other sources of data used in developing the CUN and the 

BUNNI include data submitted by the registrant and fumigation companies, in addition to data 

compiled by USDA researchers. In the Final Rule EPA used the best available data, from the 

2008 CUN, to make adjustments for sulfuryl fluoride. However, in reviewing the calculations in 

the proposed rule, EPA noted one instance of double-counting which had been applied to the 

milling sector. Therefore the overall sulfuryl fluoride uptake amount was revised from 68,170 to 

53,703 kilograms. 

− Two commenters stress that sulfuryl fluoride is not a methyl bromide substitute for preplant fumigations, and therefore reductions should apply only to post-harvest users and 

the total volume available to pre-plant uses should remain unchanged. [0142, 0149] 

Response: In the CUE Framework Rule (69 FR 76982) EPA created two distinct types of methyl 

bromide critical use allowances (CUAs): CUAs for pre-plant soil uses and CUAs for postharvest and structural uses. EPA agrees with the commenter that at this time sulfuryl fluoride is 

only a technically and economically feasible alternative in the post-harvest, commodity and 

structural sectors. Therefore, the transition to sulfuryl fluoride did not affect EPA’s allocation of

pre-plant critical use allowances in the Final Rule. 

− One commenter believes that sulfuryl fluoride is not meeting expectations as an 

alternative. [0146] 

• Five commenters contend that EPA provides no factual basis for the 12% to 18% sulfuryl 

fluoride transition estimate [0120.1, 0126, 0132.1, 0142, 0149]. 

Response: EPA’s most recent analysis of the transition rate to sulfuryl fluoride is contained in 

the 2008 CUN and 2008 BUNNI, which are available in the docket for the Final Rule (EPA-HQOAR-2005-0538). 

− One commenter states that while sulfuryl fluoride may have potential as a commodity 

treatment, it is unclear whether it will hold up under commercial use. The commenter 

believes that EPA should “investigate more thoroughly to determine what the economic 

feasibility of the product truly is.” [0126] 
-14- 

Response: EPA’s analysis recognizes that significant hurdles currently exist in the commodities 

sector that constrain the economic feasibility of sulfuryl fluoride. These hurdles include: (1) 

many U.S. trading partners have not yet registered sulfuryl fluoride, (2) the relatively high price 

of sulfuryl fluoride at this time, (3) industry inexperience with sulfuryl fluoride, and (4) research 

suggesting that higher concentrations of sulfuryl fluoride are required in colder temperatures and 

to kill egg-stage insect pests. EPA will continue to seek the best available data regarding the 

economic and technical feasibility of sulfuryl fluoride, and to integrate this data into its analyses.

− A second commenter suggests that EPA “poll those industries that have the opportunity 

to use sulfuryl fluoride and identify those who can and will convert, and if not, why not.” 

[0142] 

Response: On August 23, 2006, EPA issued letters to a sample of fumigation and flour milling 

operations under Section 114 of the CAA in order to obtain better data to support its sulfuryl 

fluoride transition estimates. EPA may use the data obtained from the Section 114 responses in 

future rulemakings and we will continue to consider additional sulfuryl fluoride research data.

- One commenter states that sulfuryl fluoride has not been tested in real time circumstances 

for the commenter’s time sensitive industry and therefore more time is needed to 

determine its efficacy and use potential before further restricting methyl bromide use. 

[0140] 

Response: EPA’s most recent analysis acknowledges factors in the walnut industry that 

challenge the economic feasibility of sulfuryl fluoride. For example, many major export markets 

have not established tolerances for sulfuryl fluoride use on walnuts. Because walnuts are 

fumigated as they leave the field, and before they are segregated into export and domestic use, 

the use of sulfuryl fluoride will continue to be restricted until the tolerances for sulfuryl fluoride

on walnuts are established. 

- Four commenters state that 2008 CUN nomination documents do not provide adequate 

evidence for the advanced role sulfuryl fluoride may play as a future alternative and go 

on to cite multiple instances in the document to support this claim. [0113, 0118, 0121, 

0136] Five commenters also cite an internal EPA evaluation document in regard to the 

limitations of sulfuryl fluoride (Memorandum from C. Cook to D. Hufford entitled 

“Evaluation of the Ability of Sulfuryl Fluoride (ProFumeTM) to Replace Methyl Bromide 

in Post-Harvest Uses, Document No. EPA-HQ-OAR-2005-0538-088). [0113, 0118, 

0121, 0136, 0141] 

Repsonse: As the internal EPA memo (EPA-HQ-OAR-2005-0538; document number 088) 

indicates, EPA is aware that circumstances exist in which sulfuryl fluoride is a less effective 

methyl bromide alternative. For example, very high concentrations of sulfuryl fluoride are 

required to kill egg stage pests in cold temperatures. Similarly, the 2008 CUN acknowledges 

that EPA has limited economic data on sulfuryl fluoride’s performance relative to methyl 

bromide. To gain more of this type of data, on August 23, 2006, EPA issued letters under 

Section 114 of the CAA to a sample of fumigation and flour milling operations that have 
-15- 

experience with both methyl bromide and sulfuryl fluoride. While the 114 responses consisted 

of a very small sample, there was some variation among the responses with regard to 

comparative costs. 

The commenters state instances where EPA recognized areas where it needs to collect more 

information about sulfuryl fluoride. The 2008 CUN analysis, which estimates a 12-18% sulfuryl 

fluoride transition rate for 2007, was made in light of the Agency’s current data limitations. In 

other words, the information EPA has collected supports an estimated 12-18% transition rate. 

Transition rates were only estimated for sectors in which sulfuryl fluoride is registered, and 

where there are data demonstrating that key pests are controlled by sulfuryl fluoride. As the 

Agency collects more information about sulfuryl fluoride it will revise this estimate accordingly. 

− Three commenters highlight the 2008 CUN nomination document claims, among them 

that implementation of sulfuryl fluoride, if feasible, will occur gradually, that fumigation 

with sulfuryl fluoride at lower temperatures is ineffective, and that the requirement for 

only “incidental fumigation” for processed foods is not always possible. [0118, 0121, 

0136] 

Response: The 2008 CUN and 2008 BUNNI considered the points raised by the commenter 

about the feasibility of sulfuryl fluoride as a methyl bromide alternative, and estimated a 12-18% 

transition rate to sulfuryl fluoride in 2007. 

• Eight commenters support the use of sulfuryl fluoride for post harvest applications. [0122, 

0127.1, 0128.1, 0129.1, 0130.1, 0132.1, 0137.1, 0138.1] Five commenters state that the 

fumigant is an alternative to methyl bromide already being adopted by the marketplace and 

has been used successfully at several rice mills. [0127.1, 0128.1, 0129.1, 0130.1, 132.1] Two 

commenters believe that sulfuryl fluoride should be able to displace more than the proposed 

15% of the structural uses of methyl bromide in 2006. [0132.1, 0122] One commenter states 

that initial use of ProFume has shown promise for fumigation of cocoa beans and would like 

to see continued “science-based regulatory progress in this regard.” [0137.1] 

− One commenter details ProFume’s qualities in comparison to methyl bromide, discussing 

efficacy, economics, and precision. The commenter believes that ProFume can compete 

with methyl bromide in all of these categories. [0129.1] 

Response: EPA’s 2008 CUN and 2008 BUNNI use the best available data to discuss 

characteristics of sulfuryl fluoride and other circumstances that currently limit sulfuryl fluoride’s 

technical and economic feasibility as a methyl bromide alternative. EPA continues to support 

research and other efforts to improve the viability of alternatives to methyl bromide. 

− One commenter states that sulfuryl fluoride’s strong penetrating ability makes it more 

effective in the fumigation of old wooden structures than methyl bromide. [0127.1] 

Response: EPA appreciates the commenter’s point about the penetrating ability of sulfuryl 

fluoride. Data indicates that heat improves the efficacy of sulfuryl fluoride as a structural 

fumigant. However, the 2008 CUN notes that heat may not be suitable for wood frame buildings 
-16- 

or commodities with high oil content, because in these situations heat may foster the 

development of rancidity. The 2008 CUN is available on the docket for this Final Rule (EPAHQ-OAR-2005-0538). 

− One commenter believes that ProFume is capable of replacing 94% of all current postharvest methyl bromide uses [0132.1, 0138.1], and two commenters claim that it can 

replace all post-harvest uses by December 31, 2007. One commenter calls for a quicker 

implementation of greater amounts of sulfuryl fluoride in post-harvest uses and proposes 

a reduction in 2007 methyl bromide CUEs exceeding the proposed 68,170 kgs “in 

recognition of the regulatory and market advances of ProFume”. [0132.1] 

Response: EPA’s analysis in the 2008 CUN does not support the conclusion that ProFume is 

capable of replacing 94% of all post-harvest methyl bromide uses, at least not as soon as 2007. 

The 2008 CUN and 2008 BUNNI use the best available data to discuss characteristics of sulfuryl 

fluoride and other circumstances that currently limit sulfuryl fluoride’s technical and economic 

feasibility as a methyl bromide alternative. Some of these limitations are discussed above in this 

document. 

− Two commenters state that ProFume is registered in all 50 states as well as in “key 

countries outside the U.S.” [0132.1, 0138.1], and one commenter provides details 

regarding its registration status in various states as well as the Maximum Residue Limits 

(MRLs) approval status as per the Codex Alimentarius Commission. [0132.1] 

Response: EPA appreciates the information provided by this commenter. The information about 

additional countries establishing MRLs may be considered in future analyses. 

− One commenter states that ProFume provides broad spectrum, all life stage pest control, 

and does not deplete the ozone layer. The commenter cites and attaches 19 documents to 

support these assertions. The documents address: “SPIP Rebound before and after 

fumigation, Flour Beetle activity in a mill, SF Vs MB fumigation comparison, ProFume 

field bioassay, ProFume fumigation of rice mills in California, Commercial performance 

of ProFume, Commercial performance of ProFume detail, Red Flour Beetle monitoring 

after MD Fumigations, USDA Research Paper, Economics of commercial ProFume 

fumigations, Canadian ProFume PMRA registration efficacy evaluation, Development of 

Sulphuryl Fluoride in China, U.S. Cocoa Manufacturer’s Association, Testimonials & 

Letters of Support, Current ProFume Registration Status, ProFume commercial summary 

data, Fumigation Economics, ProFume retreat facts, and Commercial case studies.” 

[0138.1] 

Response: EPA appreciates the technical information provided by this commenter. EPA’s 

Office of Pesticide Programs will consider the data provided by the commenter in future analyses 

of sulfuryl fluoride’s potential as a methyl bromide alternative. 

The Agency continues to study the efficacy of sulfuryl fluoride as a “broad spectrum, all life 

stage pest control.” Published literature reports that at lower temperatures a greater 

concentration of sulfuryl fluoride is necessary to kill eggs of the stored product insect pests 
-17- 

(Memorandum from C. Cook to D. Hufford entitled “Evaluation of the Ability of Sulfuryl 

Fluoride (ProFumeTM) to Replace Methyl Bromide in Post-Harvest Uses, Document No. EPAHQ-OAR-2005-0538-088). 

− One commenter states that “phase-out timetables are intended to accelerate the market 

penetration of alternatives” but that market penetration of sulfuryl fluoride is inhibited by 

the continued availability of methyl bromide for uses that sulfuryl fluoride could address. 

The commenter believes that the environmental issue at stake (protection of the ozone 

layer) should enable an accelerated rate of market penetration of alternatives. [0122] 

Response: Based on the assessment performed for the 2008 BUNNI and the 2008 CUN, which 

are available on the docket for the Final Rule (EPA-HQ-OAR-2005-0538), a transition rate of 

between 12%-18% reflects the best available data on the feasible uptake of sulfuryl fluoride in 

the affected portions of the industry. EPA believes that the projected uptake in 2008 and 

subsequent years under a business-as-usual scenario can be achieved earlier by removing the 

corresponding amount of methyl bromide from the approved critical use level, for the affected 

sectors. This enables an accelerated rate of market penetration as compared to a scenario with no 

reductions in critical use methyl bromide.

− Another commenter asserts that the pace of phaseout should not be left wholly to the 

“market” to determine and that the phaseout rate should be purposefully driven by the 

EPA. The commenter also states that more than 25% of the grain milling market has 

already demonstrated success using ProFume. The commenter recommends that future 

re-evaluation of a methyl bromide alternative should permit consideration of increasing 

the displacement percentage and that methyl bromide consumers submitting an allocation 

request to the EPA should also be required to provide 1) an estimation of a “Transition to 

a methyl bromide alternative” timeline and 2) the conditions necessary to meet the 

timeline. [0132.1] 

Response: EPA does not believe that the pace of the phaseout is entirely market driven. Methyl 

bromide is a heavily regulated substance, and the United States Government continues to 

intervene in the market to accelerate the transition to alternatives through regulation, research, 

and other means. Based on the assessment performed for the 2008 BUNNI of the 2008 CUN, 

which are available on the docket (EPA-HQ-OAR-2005-0538), a transition rate of between 12%-

18% reflects the best available data on the feasible uptake of sulfuryl fluoride. EPA believes that 

the projected uptake in 2008 and subsequent years under a business-as-usual scenario can be 

achieved earlier by removing the corresponding amount of methyl bromide from the approved 

critical use level. This is an example of how EPA can affect market conditions to accelerate the 

transition to methyl bromide alternatives. 

EPA requires that critical use applications include extensive information about methyl bromide 

alternatives, including plans for future research of potential alternatives. EPA will continue to 

consider public comments regarding the critical use exemption application process. 

• One commenter believes that sulfuryl fluoride has the potential to replace methyl bromide for 

some, but not all, applications. The commenter states that sulfuryl fluoride is successfully 
-18- 

used to fumigate mill structures for the California rice industry, reducing reliance on methyl 

bromide, but that methyl bromide still must be used to fumigate products shipped in wood 

floor shipping containers since sulfuryl fluoride has a tendency to penetrate wooden material. 

[0131.1] 

• Seven comments expressed concerns related to the safety, efficacy, and/or trade limitations 

associated with the use of sulfuryl fluoride. [0114, 0116.1, 0119, 0120.1, 0136, 0140, 0141] 

Response: EPA’s estimated transition rate accounts for the limitations listed by the commenters. 

The 2008 CUN explicitly notes that safety, efficacy and trade regulations impede the uptake of 

methyl bromide alternatives, such as sulfuryl fluoride. EPA believes that the 2008 CUN still 

represents the best available data on the transition to sulfuryl fluoride,, which also accounted for 

potential transition barriers and therefore did not include an uptake amount for the commodites 

sector due to export market concerns. 

− Four commenters cite recent health concerns about the safety of sulfuryl fluoride on food 

products. [0114, 0116.1, 0119, 0136] Three commenters state that a recent study 

published by the National Research Council (National Academy of Sciences) raises 

serious health concerns associated with the use of fluoride. [0116.1, 0136, 0141] 

Response: EPA is aware of the National Research Council study, and is monitoring 

developments regarding sulfuryl fluoride tolerances. Since no final action has been taken with 

regard to a stay of sulfuryl fluoride tolerances, in the Final Rule EPA assumed those tolerances 

will remain effective. If a stay is imposed, EPA will adjust its analysis accordingly. 

− Three commenters state that there are few or no international tolerances for sulfuryl 

fluoride. Thus, food grown using sulfuryl fluoride generally cannot be shipped to other 

countries. [0116.1, 120.1, 140] 

Response: EPA is aware that many major U.S. trading partners have not established tolerances 

for sulfuryl fluoride, which restricts its use. These limitations were considered in the 2008 CUN 

and 2008 BUNNI. 

- One commenter expresses concern that some fumigations with sulfuryl fluoride are not in 

compliance with current interpretations of the sulfuryl fluoride label. The commenter 

also states that the uptake of sulfuryl fluoride is 2 to 3 times lower than the uptake of 

methyl bromide, and therefore 2 to 3 times more must be used for equal efficacy. [0119] 

A second commenter also addresses the shortcomings of the current ProFume label. 

[0141] 

Response: EPA would be interested in further details that the commenter can provide about 

fumigations with sulfuryl fluoride that are not in compliance with current interpretations of the 

label. 

EPA’s analysis recognizes that sulfuryl fluoride is temperature dependent and that higher 

concentrations are necessary to kill egg-stage pests, especially when temperatures are low. 
-19- 

• One commenter gives a more detailed explanation of why sulfuryl fluoride uptake has not 

kept pace with EPA’s expectations, including: 

Efficacy: The commenter states that sulfuryl fluoride is a weak ovicide, and therefore 

two fumigations must be done (the second to kill the emerged insects that were still eggs 

at the time of the first fumigation), increasing the price of use, compared to the one 

fumigation necessary with methyl bromide. The commenter also states that ProFume 

does not penetrate as deeply into stored grain as methyl bromide when the grain requires 

a top-down fumigation, and the resulting multiple fumigations required with ProFume in 

such situations (e.g. when grain is transported on barges) are prohibitively costly and 

time consuming. Additionally, the commenter states that one mill that performed a 

ProFume fumigation found live insects immediately following the fumigation. 

Temperature: The commenter states that sulfuryl fluoride fumigation success rates are 

comparable to methyl bromide rates (excluding egg eradication) at 80°F, however if the 

temperature is below that level, sulfuryl fluoride rapidly loses efficacy and thus more of 

the gas is needed. 

Response: In the 2008 CUN, EPA notes that sulfuryl fluoride is temperature dependent, and that 

to kill eggs requires higher concentrations except at optimal temperatures. 

Sealing: The commenter states that because sulfuryl fluoride has a much higher vapor 

pressure than methyl bromide, it is difficult to “hold” in a building even with a good seal. 

Response: The difficulty of “holding” sulfuryl fluoride shows up in economic data, because 

applicators will be forced to use more sulfuryl fluoride to achieve acceptable results. EPA will 

continue to consider this as it collects more information regarding the efficacy of sulfuryl 

fluoride. 

Label Problems: The commenter states that the sulfuryl fluoride registration is not as 

“robust and clear” as the methyl bromide label and believes that this leaves fumigators 

and millers unsure of whether they are using sulfuryl fluoride in accordance with 

regulations. The commenter also states that the ProFume label does not allow for the 

presence of certain ingredients that are warehoused in bulk in mills along with the 

targeted grain and cannot be removed. Additionally, the ProFume label does not cover 

some major pests, and many state regulations therefore prevent mills that contain those 

pests from using ProFume. 

Response: The 2008 CUN acknowledges that many mills produce products that are not listed on 

the current label. Although the label allows “incidental” fumigation, the mills will need to move 

the products so that they are not fumigated. Adoption of sulfuryl fluoride will be delayed for 

some of these mills, where the products listed on the label cannot be removed, until tolerances 

for these ingredients are sought by the registrant, reviewed by EPA, and granted (if they meet 

eligibility criteria). EPA addresses these issues in further detail in an internal memo that is 

available on the docket (Memorandum from C. Cook to D. Hufford entitled “Evaluation of the 
-20- 

Ability of Sulfuryl Fluoride (ProFumeTM) to Replace Methyl Bromide in Post-Harvest Uses” 

(EPA-HQ-OAR-2005-0538-088).

Tolerances: The commenter addresses the lack of tolerance in export markets for 

sulfuryl fluoride. The commenter states that the use of sulfuryl fluoride in another 

country does not automatically mean that U.S. commodities receive tolerances and can be 

exported to those countries. The commenter also states that the FAO Codex has not 

historically established a tolerance for sulfuryl fluoride, and has recently only by 

shortening the multi-year review process, which leaves Codex and EPA “open to attack” 

and puts “the future of sulfuryl fluoride in doubt.” The commenter cites the relevant 

sources regarding other countries. 

Response: EPA is aware that many major U.S. trading partners have not yet established 

tolerances for sulfuryl fluoride, which restricts its use. These limitations were considered in the 

2008 CUN.

Cost, Dosage, and Other Issues: The commenter states that in order to have a successful 

fumigation at an “All Life Stages” (ALS) dosage, over twice as much ProFume is needed 

as methyl bromide. This increased dosage will cause mills to surpass the 10,000 pound 

limit and thus force them into Form R reporting to EPA under the EPCRA, adding burden 

and cost to the use of ProFume. The commenter states that to fumigate at a Post 

Embryonic Plus (PEP) dosage, killing only post-egg life stages, the fumigations 

performed each year would double, bringing the pricing up to that of an ALS treatment. 

The commenter states that the price of ProFume is also affected by the large dosages 

needed to counteract its dissipation through structural materials as well as higher freight 

costs due to higher weights and higher labor costs due to the additional setup 

requirements such as piping, fan placement, extra sealing, and the tearing down of those 

fixtures or payment for permanent piping. The commenter states that ProFume does have 

the benefits of smaller non-occupied buffer zones and quicker venting of the gas. [0141] 

Response: The 2008 CUN includes economic analysis of alternatives, including sulfuryl 

fluoride. EPA is actively collecting additional data on the economics of sulfuryl fluoride. Most 

recently, in August 2006 EPA gathered additional data about sulfuryl fluoride use from a sample 

of millers and fumigators under the authority of Sec. 114 of the Clean Air Act. As stated above, 

the responses to the 114 inquiry demonstrated a variety of results when comparing the costs of 

methyl bromide and sulfuryl fluoride. While the 114 requests did not comprise part of the 

BUNNI technical assessment, EPA may use the data in future rulemakings. 

2.b. Adoption of Other Alternatives 

Commenter Organization Document ID Number 

Steve Godbehere None 0117 

Stephen Payne Pet Food Institute 0118 

Mark Reddick Reddick Fumigants, Inc. 0121, 0121.1 

David Doniger Natural Resources Defense Council 0122, 0122.1 

Richard Matoian CA Fig Advisory Board 0124 

Michal Mellano CA Cut Flower Commission 0125 
-21- 

Bruce Houtman Dow AgroSciences LLC 0132, 0132.1, 0132.2 

Craig Weyandt Florida Golf Course Superintendents Association 0133 

Glen Fischer California Pepper Commission 0135 

David McAllister Chemtura Corporation 0136 

Don Stringfield Tree Improvement 0144 

George Lowerts International Paper 0145 

Peter Joyce Value Recovery, Incorporated 0115 

• Seven commenters believe that EPA should maintain the current amount of critical use 

methyl bromide until “technically and economically feasible alternatives” are readily 

available, as directed by the Montreal Protocol. The commenters also state that if 

alternatives were available, the volume of critical use applications would have decreased, as 

the cost of submitting a complete application is high. [0117, 0118, 0121, 0124, 0125, 0133, 

0136] 

Response: EPA reiterates that critical use exemptions are only for those areas where technically 

and economically feasible alternatives are not available.

• One commenter contends that while EPA stated in 1993 that alternatives would be available 

before the phase-out occurred in 2005, no new alternatives are available for many pre-plant 

soil uses despite over $100 million spent on research. The commenter illustrates this 

assertion with a photograph of unhealthy pine seedlings that are receiving a lower dose of 

methyl bromide than in previous years in response to reduced supply and increased costs. 

[0117] 

Response: The 2007 CUN was based on careful and robust analysis, and was for those areas 

where alternatives are not feasible. The commenter is correct that substantial resources have 

been devoted to finding methyl bromide alternatives. The United States Government alone has 

invested over $150 million in this research effort. Private sector investment in research has also 

been significant. Thanks in part to this research, and to the successful implementation of 

alternatives and pest management practices, the United States nomination for critical use methyl 

bromide for 2007 was 29% of the 1991 consumption baseline, and for 2008 it was 25% of the 

1991 baseline. 

 

• Five commenters believe that traditional phase-out models cannot be applied to methyl 

bromide. One commenter stated that EPA should not “apply an industrial phase-out 

model to agricultural chemicals or an international phase-out model to domestic 

conditions.” The commenters state that methyl bromide’s unique role presents phase-out 

challenges, including finding alternatives that will prove effective when applied directly 

to the environment and used in various climatic and pest conditions, and concurrently 

finding alternatives that are less toxic than methyl bromide. The commenters also state 

that developing and implementing agricultural alternatives in the U.S. is a lengthy 

process due to the country’s large size, broad range of crops produced, and unique labor 

force. [0118, 0121, 0125, 0136, 0145] Additionally, one of the commenters also states 

that the same principles of complexity as noted above for agriculture apply to methyl 

bromide use in industrial structural fumigations. [0118] 
-22- 

Response: At 40 CFR 82.3 the definition of critical use refers to the lack of technically and 

economically feasible substitutes and alternatives that “are suitable to the crops and 

circumstances involved.” Thus, the methyl bromide critical use criteria are tailored specifically 

to the challenges faced by methyl bromide users. 

− One commenter specifically states that the model of replacing CFCs as refrigerants is not 

applicable to replacing methyl bromide with alternatives due to the complicating factor of 

matching its reactive properties. [0115] 

• One commenter states that no alternatives currently available are as effective at controlling 

disease and pathogens as well as methyl bromide. [0144] 

Response: Due to the variety of crops and circumstances faced by methyl bromide users, EPA 

analyzes methyl bromide alternatives on a use-specific basis. If EPA finds that an economically 

feasible and technically feasible alternative exists for a specific methyl bromide use, that use 

does not qualify as a “critical use” as defined at 40 CFR 82.3. This is true even if methyl 

bromide is the most effective option for controlling disease and pathogens given the crop or 

circumstances in question. 

• One commenter states that existing alternatives to methyl bromide for the commenter’s 

purposes are well researched and objects to the rejection of CUE applications due to lack of 

research provided when “there is nothing new on the market to research.” [0135] 

Response: The commenter is referring to the 2008 CUE application submitted by the California 

Pepper Commission (CPC), in which the CPC did not provide priorities for future research on 

methyl bromide alternatives. The 2007 CUN notes that for pepper production in California, 

chloropicrin, 1,3-D, metam-sodium, water management, and plant varieties will continue to be 

tested for efficacy against P. capsici and other soil-born pathogens. In the CPC’s 2009 critical 

use application, the CPC listed five alternative chemicals or cultural practices worthy of testing. 

Therefore, EPA does not agree with the commenter that there is nothing left to research. In the 

absence of new products on the market, methyl bromide users could test methods for using 

methyl bromide more efficiently, including emission minimization options.

Production and consumption of methyl bromide for critical uses is only permitted if it is 

demonstrated that an appropriate effort is being made to evaluate alternatives and substitutes. 

• One commenter states that EPA has not accounted for alternatives other than sulfuryl 

fluoride in its proposal. The commenter states that EPA acknowledges that the review 

associated with the development of the U.S. nomination was written two years prior to the 

year of exemption, and therefore situations where new alternatives have become available 

may warrant a post-hoc review. [0122] 

Response: EPA’s Final Rule relies on the best available data. This information is primarily 

found in the 2008 CUN, which is available on the docket for this Final Rule (EPA-HQ-OAR2005-0538) where all relevant substitutes and alternatives are considered. 
-23- 

• One commenter expresses dissatisfaction with EPA’s delay in implementing a transition to 

alternatives. The commenter states that this delay has affected his organization’s ability to 

generate a return on its significant investments in research and development of alternatives. 

According to the commenter, the delay not only resulted in spending additional time and 

money to continue repetitive research, but also further slowed interest in adoption of 

alternatives. [0132.1] 

Response: In an effort to speed adoption of alternatives, the U.S. government has invested over 

$150 million in research on potential methyl bromide substitutes and alternatives. Promotion of 

alternatives through education and extension, robust testing of alternatives and assessment of 

alternatives continue to be EPA priorities. 

3. Summary of Comments Relating to EMISSIONS MINIMIZATION 

Commenter Organization Document ID Number 

David McAllister Chemtura Corporation 0136 

Amy Schaffer Weyerhaeuser Company 0142 

George Lowerts International Paper 0145 

Peter Joyce Value Recovery, Incorporated 0115 

• Two commenters believe EPA should continue to encourage emission minimization without 

mandating the use of emissions control technology. The commenters believe that 

fundamental questions remain regarding the technical, economic, and regulatory feasibility of 

many of the emissions control measures currently on the market and that it is too early to 

make decisions on further reductions to CUE volumes based on research trials. [0136, 0145] 

Response: EPA continues to encourage the use of emissions minimization techniques and notes 

that the critical use exemption application contains a worksheet on emissions reduction. 

• One commenter expresses concern that “EPA has not assisted in technology transfer in 

identifying new beneficial alternatives and management techniques.” The commenter 

believes that many methyl bromide users are unaware of the newly available high-barrier 

films or the reasons why it has taken so long to develop glues that will work with virtually 

impermeable films (VIF) in flat fume situations. The commenter suggests that EPA facilitate 

improvements by communicating the availability of beneficial alternatives and publicizing 

results of critical research in a timely manner. [0142] 

Response: EPA agrees with the commenter that technology transfer is an important aspect of the 

transition to methyl bromide alternatives. The Methyl Bromide Alternatives Outreach (MBAO) 

conference includes industry, growers, researchers and government, and meets once a year to 

share the results of methyl bromide alternatives research. MBAO has included research about 

emissions minimization technologies such as VIF and metalized films, and these technologies 

continue to be a focus of MBAO. For example, the 2006 MBAO conference included five expert 

presentations on the subject of mulch film and emission reduction. More information about 

MBAO and the 2006 conference in Orlando, FL can be found at http://www.mbao.org/. The 

2006 Conference was sponsored by MBAO with cooperation from EPA, The Crop Protection 

Coalition and the U.S. Department of Agriculture. 
-24- 

• One commenter believes that the potential for emissions reduction of methyl bromide is 

great, but that barriers of “power, politics, common sense, leadership, and will” (rather than 

technology or economics) stand in the way of the implementation of existing technologies. 

The commenter states the following barriers: 

− The commenter states that the main barrier to adoption of emissions controls is the lack 

of commercial incentives for industry to use emissions control technology for pre-plant, 

post-harvest, or QPS applications. The commenter acknowledges the existence of an 

incentive specifically targeted to soil, however. The commenter believes that if an entity 

can verify that it used methyl bromide but did not emit it into the atmosphere (i.e. through 

reuse, recycling, or chemical destruction), then that use should not be deducted from the 

entity’s CUE. The commenter asserts that the Clean Air Act and Montreal Protocol 

support this approach. [0115] 

Response: As a Party to the Montreal Protocol, the United States is committed to eliminating 

emissions of ozone-depleting substances (ODS) by meeting its phaseout targets for ODS 

production and consumption. The phaseout approach of replacing methyl bromide with 

alternatives is supported by Decision IX/6, which states that certain uses of methyl bromide are 

only considered critical if the lack of availability of methyl bromide for those uses would result 

in a significant market disruption and if no technically or economically feasible alternatives 

exist. It is expected that as new alternatives are developed, fewer uses will be considered critical 

under Decision IX/6, and indeed, since 2005, the level of critical use methyl bromide nominated 

by the U.S. and approved by the Parties to the Protocol has decreased. To that end, since 

recycling/reclamation of methyl bromide is not considered new production or consumption, 

emissions control technology may have an increasingly important role to play in recapturing and 

recycling/reclaiming methyl bromide for continued use as new production/consumption 

allowances become more limited over the coming years. Additionally, EPA strongly encourages 

the use of emissions minimization techniques, and notes that the critical use exemption 

application contains an emission reduction worksheet. 

 

− According to the commenter, a second barrier is the nine month delay in the production, 

subsequent limited availability, and poor quality of a reporting form for data on emissions 

control technology mandated by the Montreal Protocol through Decision 17/9 and CRP10 at the 25th OEWG meeting in June, 2005. The commenter further states that the form, 

once completed, was never responded to by the Montreal Protocol and that the 

commenter was denied the opportunity to present the data at a side session of the 2006 

OEWG meeting, in violation of Article IX, Paragraph 1(a). The commenter requests 

EPA’s help in addressing this issue with the Protocol. 

The U.S. submitted a report to the Ozone Secretariat in accordance with Decision XVII/11 on 

June 20, 2006, regarding the efficacy, logistical issues and economic feasibility of technologies 

to recapture, recycle, destroy, or reduce methyl bromide emissions from fixed facilities. The 

U.S. report to the Parties contains very detailed information on the capture and phase transfer 

catalysis technology developed by the commenter, and is available on the docket for this action, 

EPA-HQ-OAR-2005-0538. 
-25- 

While this comment is outside the scope of this rulemaking, EPA notes the commenter’s concern 

and is open to discussing this issue further with the commenter. 

− The commenter states that a third barrier is the misperception that emissions controls 

would lessen the incentive to develop alternatives. The commenter responds that: (1) 

even if the argument were true, it is not a problem since the atmosphere is still protected 

either way; (2) manufacturers have already had 14 years to develop alternatives; and (3) 

in response to claims that users who adopt emissions control methods will be reluctant to 

give up methyl bromide when it is completely phased out, that methyl bromide is 

unlikely to ever be completely phased out and that policies directed toward that end 

“serve no public purpose.” The commenter further states that since there are only 4 

authorized methyl bromide suppliers in the U.S., they do not face any competitive 

incentive to lower prices or, thus, increase their sales, e.g. by supporting emissions 

controls. 

Response: While strongly encouraging the use of emissions minimization techniques, EPA 

remains committed to the phase-out of methyl bromide. As noted in the preamble of Final Rule, 

EPA believes that by reducing supply through the phaseout there is an inherent incentive to use 

the ever-diminishing quantities of methyl bromide more effectively, thus inducing methyl 

bromide users to limit emissions. 

- The commenter additionally summarizes the following recommendations for commercial 

incentives for the implementation of methyl bromide controls: (1) introduce a system 

where users report the amount of methyl bromide used, destroyed after use, and emitted, 

and provide access to increased sources of methyl bromide; (2) publish methyl bromide 

emissions data from users on an annual basis to give them incentive to gain a marketing 

edge based on using stated green technologies; (3) publish a “drop-dead rate” 

approximately 5 years in the future where a minimum of 50% of methyl bromide use 

must be contained in emissions-control use or else prohibited; and (4) allow new methyl 

bromide competition into the U.S., providing incentives for new suppliers to add value to 

their product through emissions control. 

- The commenter further states that commercial-scale demonstrations of methyl bromide 

use and instantaneous destruction have been successful and that the system used is 

affordable and readily available. [0115] 

Response: EPA appreciates the commenter’s recommendations, and the Agency will consider 

them as it continues to encourage the use of emissions minimization techniques, while focusing 

on the phaseout of methyl bromide. 

EPA remains committed to identifying and promoting ways in which methyl bromide emissions 

can be minimized from fumigation applications; however, the commenter’s proposed 

recommendations [#1, #2, and #3 above and page 19 through page 22 of the original comment 

#0147] are outside the purview of this EPA rulemaking. 
-26- 

In response to recommendation #4 [paragraph 4 above and page 22 original comment #0147], 

the price of methyl bromide is determined by market forces of supply and demand, and because 

only a certain amount of new production/consumption is approved by the Parties, EPA limits the 

supply of newly produced/imported methyl bromide. As a result, it is highly likely that prices 

for methyl bromide are higher than those that would be experienced were there no cap on new 

production. With regard to the number of methyl bromide manufacturers, there are a limited 

number of sources of elemental bromine needed to produce methyl bromide and a very limited 

number of companies that are capable of producing methyl bromide. Of those few companies 

capable of producing methyl bromide, even fewer are actually producing methyl bromide based 

on each company’s assessment of whether such production is profitable and/or is necessary to 

meet customer agreements under contract. 

Because supply of newly produced methyl bromide is already restricted by the CUE levels 

approved by the Parties to the Protocol, and given the constraints related to access to bromine, 

the market for producing methyl bromide is a decreasing one, not likely to attract new 

manufacturers. Emissions control technologies should be of interest, however, to methyl 

bromide users who could recover and recycle/reclaim methyl bromide for reuse and thereby 

avoid purchasing new methyl bromide. 

4. Summary of Comments Relating to 

TWO-SECTOR APPROACH TO CRITICAL USE ALLOWANCE 

ALLOCATIONS 

Commenter Organization Document ID Number 

Betsy Peterson CA Bean Shippers Association 0113 

Nancy Sandrof American Chemistry Council 0120, 0120.1 

Mark Reddick Reddick Fumigants, Inc. 0121, 0121.1 

Bruce Houtman Dow AgroSciences LLC 0132, 0132.1, 0132.2 

David McAllister Chemtura Corporation 0136 

Amy Schaffer Weyerhaeuser Company 0142 

• According to five commenters, the current two-sector critical use allocation approach is 

preferable over switching to a sector-specific approach and should be continued by EPA 

because it is consistent with the manner in which the methyl bromide market currently 

operates, and is easier to implement from a logistical and administrative standpoint. [0113, 

0120.1, 0121, 0136, 0142] 

Response: EPA is maintaining the current two-sector allocation approach in the Final Rule. 

• One commenter believes that critical use and critical stock allocations should be allocated 

specifically to each of the Critical Use Categories as authorized by the Parties. The 

commenter states that other countries have already established use-specific allocation 

methods. The commenter believes that the U.S.’s “lump sum” approach does not guarantee 

that approved critical users will have access to methyl bromide and allows users with the 

greatest ability to pay to block access for critical users. Further, the commenter believes that 

the “lump sum” approach delays the transition to alternatives and does not provide EPA with 
-27- 

any ability to keep excessive methyl bromide from users whose uses have successful 

alternatives. The commenter requests that if EPA does not adopt a use-specific approach, 

that it at least maintain the current two-sector allocation system. [0132.1] 

Response: Approved critical users may only purchase methyl bromide for approved critical 

uses. Therefore, there is a limited ability for critical users to “block access” for other critical 

users by hoarding methyl bromide, as the commenter suggests. While it is theoretically possible 

that approved critical users could somehow get blocked from purchasing methyl bromide, the 

Agency is unaware of that happening, and believes that it would be an unlikely outcome of the 

current allocation system. 

As the preamble of the Final Rule discusses, although the universal approach does not directly 

allocate allowances to each category of use, EPA anticipates that reliance on market mechanisms 

will achieve similar results indirectly. The UN Technology & Economic Assessment Panel 

(TEAP) recommendations are based on data submitted by the U.S., which in turn are based on 

recent historic use data in the current methyl bromide market. In other words, the TEAP 

recommendations agreed to by the Parties are based on current use patterns and the current use 

patterns take place in a market where all pre-plant and post-harvest methyl bromide uses 

compete for a lump sum supply of critical use material. Therefore, the Agency expects that 

under a system of universal allocations the actual critical use will closely follow the sector 

breakout listed by the TEAP. 

EPA determined in the final Framework Rule (69 FR 76989) that the universal allocation was the 

most efficient and least burdensome approach that would achieve the desired environmental 

results, and that a sector-specific approach would pose significant administrative and practical 

difficulties. A summary of the options analysis conducted by EPA, which contributed to EPA’s 

decision in the Framework Rule to adopt the current system, is discussed in the Regulatory 

Impact Analysis (EPA-HQ-OAR-2005-0538-0086) available on the docket for the Final Rule. 

The majority of commenters continue to favor the current universal allocation system as a 

straightforward approach with minimal administrative burden. 

5. Summary of Comments Relating to TOTAL VOLUMES OF CRITICAL 

USE METHYL BROMIDE 

Commenter Organization Document ID Number 

B. Sachau None 0101 

James Bair North American Millers’ Association 0112, 0112.1 

None Albemarle Corporation 0116, 0116.1 

Stephen Payne Pet Food Institute 0118 

Nancy Sandrof American Chemistry Council 0120, 0120.1 

Mark Reddick Reddick Fumigants, Inc. 0121, 0121.1 

David Doniger Natural Resources Defense Council 0122, 0122.1 

Miguel Cea AG-Fume Service, Inc. 0123 

Richard Matoian CA Fig Advisory Board 0124 

Michal Mellano CA Cut Flower Commission 0125 

Craig Weyandt Florida Golf Course Superintendents Association 0133 

David McAllister Chemtura Corporation 0136 
-28- 

Edward Ruckert McDermott, Will & Emery for the Crop Protection 

Coalition 0139 

William Goodrich United Agribusiness League 0146 

Peter Joyce Value Recovery, Incorporated 0115 

• One commenter asserts that a phaseout of methyl bromide will not contribute to a reduction 

in ozone depletion. The commenter states that methyl bromide used for fumigation 

contributes only 0.075% of ozone depletion and believes that this amount has no bearing 

statistically. The commenter cites WMO’s Scientific Assessment of Ozone Depletion: 2002

and attaches a summary table using data from this report. The commenter further believes 

that the phaseout of methyl bromide may cause environmental damage. [0121] 

Response: EPA has addressed these comments in Section V.E. of the preamble to the Final Rule. 

• One commenter believes that there are no critical uses for methyl bromide and that its use 

should be fully banned. [0101] 

Response: Methyl bromide production and consumption was phased out in the U.S. on January 

1, 2005. However, the Clean Air Act allows EPA to establish exemptions for critical uses of 

methyl bromide. 

• One commenter believes that the phaseout of methyl bromide runs counter to the principles 

of integrated pest management (IPM) by reducing the number of available pest management 

tools. [0112.1] 

Response: While EPA acknowledges the benefits of IPM, the Agency remains committed to 

upholding the Montreal Protocol and Title VI of the Clean Air Act, which share the goal of 

reducing and eliminating the production and consumption of ozone depleting substances, such as 

methyl bromide. 

- The commenter further expresses dissatisfaction with the downward adjustments 

from the baseline-adjusted value to account for “double counting” on the part of 

the applicants. The commenter states that applicants have already made voluntary 

cuts in their requests based on knowledge of alternatives, and thus when EPA 

makes cuts based on the same information they too are guilty of double counting 

and should make upward adjustments in allocations to account for this. [0112.1] 

Response: As the commenter states, EPA does not allow applicants to double-count their needs 

for critical use methyl bromide. The same logic applies to critical use reductions made by EPA. 

In making methyl bromide reductions to account for the transition to sulfuryl fluoride the 

Agency has taken care to avoid double-counting reductions. The Agency has done this by 

accounting for the initial reductions made for sulfuryl fluoride by applicants in their critical use 

applications. 

CUE applications are an important starting point in the CUE allocation process. All steps in the 

allocation process, including the CUN, MBTOC recommendations, and authorization by the 

Parties, represent fresh consideration of these applications. The preamble of the Final Rule states 
-29- 

that “The report of the MBTOC indicated that the MBTOC did not make any reductions in these 

use categories for the uptake of sulfuryl fluoride in 2007 because the United States Government 

indicated that it would do so in its domestic allocation procedures. Therefore, EPA is reducing 

the total volume of critical use methyl bromide to reflect the continuing transition to sulfuryl 

fluoride.” Thus, EPA’s reductions, which are based on the analysis in the 2008 CUN, were made 

from CUE amounts approved by MBTOC, which did not already include reductions for the 

uptake of sulfuryl fluoride. 

• Eleven commenters object to EPA’s proposed maximum allowable amount of methyl 

bromide to be used for critical uses in 2007 on the grounds that it is lower than required by 

the Parties to the Montreal Protocol. [0116.1, 0118, 0120.1, 0121, 0123, 0124, 0125, 0133, 

0136, 0139, 0146] 

Response: EPA’s proposed maximum allowable amount of methyl bromide is less than the 

amount identified by the Parties to the Protocol for two reasons. First, events that occurred after 

the nomination process were considered in the Final Rule. More specifically, the report of the 

Methyl Bromide Technical Options Committee (MBTOC) indicated that MBTOC did not make 

reductions for the uptake of sulfuryl fluoride in 2007 because the United States Government 

indicated that it would do so in its domestic allocation process. This accounts for the 53,703-

kilogram reduction in critical use methyl bromide in the Final Rule to reflect the uptake of 

sulfuryl fluoride. Second, as described in the December 23, 2004 Framework Rule (69 FR 

76997), EPA is not permitting entities to build inventories of methyl bromide produced or 

imported under the critical use exemption program. To prevent the buildup of such inventories, 

any volumes of methyl bromide produced or imported under the critical use exemption in a 

calendar year, but not used in that year, must be reported to EPA the following year. These 

reporting requirements appear at §§82.13(f)(3)(xvi), 82.13(g)(4)(xviii), and 82.13(bb)(2)(iii). An 

amount equivalent to this “carry-over,” whether pre-plant or post-harvest, is deducted from the 

total level of allowable new production and import in the year following the year of the data 

report. 

− Six commenters state that the use amount allowed by the Parties already represents a 50% 

reduction of the amounts of methyl bromide requested by users in their applications and 

an additional 30% reduction that was applied during the international review process. 

[0118, 0121, 0124, 0133, 0136, 0146] 

Response: 2007 requests for critical use methyl bromide were over 60% of the 1991 baseline. 

After thorough technical and economic analysis described in the 2007 CUN, the United States 

Government nominated 29% of baseline for 2007. As described in more detail in the preamble 

of the final rule, the Parties to the Montreal Protocol authorized the equivalent of 26.4% of 

baseline for 2007 critical uses. For reasons described above and in the preamble of the Final 

Rule, further reductions were taken to account for the transition to sulfuryl fluoride and for 

“carry over” critical use methyl bromide not used in 2005. The final rule allocates amounts of 

critical use methyl bromide equivalent to 24.4% of baseline (with 7.5% coming from prephaseout inventory).
-30- 

− One commenter states that the allocation level approved by the Parties is nearly 10% 

below the EPA’s CUN submitted for 2007 allocations, which the EPA stated at the time 

was the minimum amount of methyl bromide needed by the U.S. for critical uses in 2007, 

though the EPA now proposes to further decrease the amount available. [0116.1] 

- One commenter states that approximately 65% to 70% of the 1991 baseline for 

methyl bromide is still needed compared to the 29% allowed level for 2007. 

[0115] 

Response: Thorough economic and technical analysis of the applications received, as reflected 

in the 2007 CUN, resulted in a U.S. nomination of approximately 7,403 metric tons of methyl 

bromide (or 29% of 1991 baseline) to meet U.S. critical uses in 2007. Critical use methyl 

bromide is only for uses for which feasible economical and technical alternatives do not exist. 

• One commenter objects to the pending proposal to provide a petition process for expanding 

the allowable production/import amount above the current proposed levels and believes 

instead that production and import should be decreased to account for the large inventory. 

This commenter also states that total usage data for 2003 is lower than the amounts requested 

for critical uses in 2005 and 2006. The commenter believes that total usage data for 2004 is 

also lower, but states that this data is not yet available from EPA. The commenter believes 

that the aggregate usage data are “more reliable than use-by-use data,” which is currently 

used for post hoc assessments of technological and economic feasibility, and expresses 

concern over the undisclosed use-by-use data sources. [0122] 

Response: EPA is not finalizing the proposed petition process at this time. Comments 

regarding inventory are addressed in the next section of this document. EPA’s estimates of use 

vary by approach (top-down v. bottom-up, etc.). The amount of CUE methyl bromide requested 

was the result of a robust technical and economic analysis undertaken for every sector, and did 

not include additional growth. For additional information on use estimates, see the Response to 

Comment document for the Framework rule (pp. 7-8) available on the docket for that rule (EPAHQ-OAR-2003-0230). 

6. Summary of Comments Relating to INVENTORY OF METHYL 

BROMIDE 

6.a. Proposed Increased Inventory Reliance 

Commenter Organization Document ID Number 

Doug Sharp Plum Creek 0106 

Dr. Scott Enebak Southern Forest Nursery Management Cooperative 0107 

Tom Anderson Plum Creek Subuta Nursery 0109 

Ken McQuage Plum Creek Timber Co. – Pearl River Nursery 0110 

Betsy Peterson CA Bean Shippers Association 0113 

None Albemarle Corporation 0116, 0116.1 

Steve Godbehere None 0117 
-31- 

Stephen Payne Pet Food Institute 0118 

Pamela Peckman The Industrial Fumigant Company 0119

Nancy Sandrof American Chemistry Council 0120, 0120.1 

Mark Reddick Reddick Fumigants, Inc. 0121, 0121.1 

David Doniger Natural Resources Defense Council 0122, 0122.1 

Miguel Cea AG-Fume Service, Inc. 0123 

Richard Matoian CA Fig Advisory Board 0124 

Michal Mellano CA Cut Flower Commission 0125 

Bruce Houtman Dow AgroSciences LLC 0132, 0132.1, 0132.2 

Craig Weyandt Florida Golf Course Superintendents Association 0133 

David McAllister Chemtura Corporation 0136 

Edward Ruckert McDermott, Will & Emery for the Crop Protection 

Coalition 0139 

Steve Hensley USA Rice Federation 

0141, 0141.1, 0141.2, 

0141.3, 0141.4, 0141.5, 

0141.6, 0141.7, 0141.8 

Amy Schaffer Weyerhaeuser Company 0142 

Tom Starkey Southern Forest Nursery Management Coop 0143 

Don Stringfield Tree Improvement 0144 

George Lowerts International Paper 0145 

William Goodrich United Agribusiness League 0146 

William Murray American Forest & Paper Association 0149 

• Fourteen commenters express concern about the proposal to increase reliance on existing 

inventory of methyl bromide. These commenters state that the proposed increase in the 

amount of methyl bromide to come from inventory is beyond the level approved by the 

Parties and that an adequate emergency stockpile must be maintained. [0113, 0116.1, 0117, 

0118, 0119, 0120.1, 121, 0124, 0133, 0136, 0142, 0145, 0146, 0149]

Response: In the NPRM, EPA proposed to allocate critical stock allowances (CSAs) for 2007 

critical uses in an amount equal to either 6.2% or 7.5% of the 1991 baseline (25,528,000 

kilograms). In the Final Rule the Agency is allocating CSAs equal to 7.5% of baseline. Section 

V.G. of the preamble to the Final Rule describes the reasons for this action. 

Section V.C. of the preamble to the Final Rule also includes options EPA will consider if the 

Agency learns of a severe inventory shortage. 

− Six commenters object to the EPA proposed CUA and CSA amounts because they 

incorporate methyl bromide for alternatives research and development programs into the 

critical use stock allocations, in addition to going beyond the requirements of the Parties. 

The commenters also object to the lack of scientific basis for the greater reliance on 

inventory than is required. [0120.1, 0136, 0139, 0143, 0144, 0145] One commenter 

strongly believes that methyl bromide used for research purposes should not divert from 

the amount of methyl bromide allocated to CUE holders. [0141] 

Response: 

Section V.G. of the preamble to the Final Rule describes EPA’s reasons for allocating 1,914,600 

kilograms (7.5% of baseline) of critical use methyl bromide from inventory. 
-32- 

− Five commenters believe the increased reliance on inventory “puts critical use sectors in 

jeopardy” and claim that there is no technical basis to increase the dependence on 

inventory at a time when the size of the methyl bromide stockpile is decreasing. Further, 

these commenters state that EPA made the argument in July 2005 that “the Protocol does 

not require the use of existing stockpiles of methyl bromide before new production and 

consumption are allowed under the Article 2H critical use exemption.” [0113, 0118, 

0121, 0124, 0136]

Response: EPA is not requiring the use of all existing stockpiles before allowing new production 

and consumption. Section V.G. of the preamble to the Final Rule describes EPA’s reasons for the 

2007 CSA amount. 

− Four commenters address the competition between critical users and non-critical users for 

stockpiles of pre-phaseout methyl bromide and state that the competition for these 

inventories could result in a lack of methyl bromide availability for critical users. [0118, 

0120.1, 0121, 0136] 

Response: In the Framework Rule (69 FR 76982) EPA established the current system in which 

only critical users may access newly produced and imported critical use methyl bromide. 

Critical users may also purchase critical use methyl bromide from inventories from suppliers that 

hold critical stock allowances. However, EPA is aware of the commenters’ concern that a severe 

inventory shortage could result in a lack of methyl bromide availability for critical users. 

Previously, EPA has proposed possible actions in the event of a severe inventory shortage, but 

the Agency has not made a final decision about what course of action it would take. 

Section V.G. of the preamble to the Final Rule discusses options EPA may consider if there is a 

severe inventory shortage. “If the Agency is informed of a severe inventory shortage, [EPA] 

may consider various options including, but not limited to, promulgating a final version of the 

petition process proposed on October 27, 2005 (70 FR 62030), taking into account comments 

received on that proposal; proposing a different administrative mechanism to serve the same 

purpose; or authorizing conversion of a limited number of CSAs to CUAs through a rulemaking, 

bearing in mind the upper limit on U.S. production/import for critical uses.” EPA is not 

implementing any of these options in the Final Rule. 

EPA’s concern regarding the potential consequences of a severe inventory shortage is one of the 

reasons the Agency sought comment in the NPRM on whether, in the critical use exemption 

context, it would be appropriate to adjust the level of new production and import with the goal of 

maintaining a stockpile of some specific duration in order to sustain non-disruptive management 

of methyl bromide in the supply chain as inventories are reduced over time. EPA has not made a 

final decision regarding the management of inventory for a specific duration. The preamble to 

the Final Rule notes that EPA “intends to continue exploring the issue in future rulemakings, 

particularly in the context of the 2008 critical use exemption.” 

 

− One commenter expresses concern over depleted inventory levels compared to 2002 

estimations, citing a 50% decrease. The commenter believes that EPA has 

underestimated the amount of methyl bromide needed to respond in the event of an 
-33- 

emergency, stating that a 9 month supply would be needed to bring a currently closed 

methyl bromide factory back online as opposed to EPA’s 100 day estimate. The 

commenter also believes that the stock should also be sufficient to alleviate minor supply 

issues. As a result, the commenter asserts that the stockpile should be increased rather 

than depleted. Further, the commenter opposes EPA’s “alternative CSA proposal” set 

forth in Table II.b. of the Proposed Rule on the grounds that there is no scientific basis 

for the proposed 1,936,302 kg stock allocation. [0116.1] 

Response: In the preamble to the Final Rule EPA notes that the Parties to the Protocol did not 

take a decision on an appropriate amount of inventory for reserve purposes at their 18th Meeting, 

held during October 30-November 3, 2006. Nor has EPA reached any conclusion regarding 

what amount might be appropriate. EPA appreciates the commenter’s input regarding the 

amount of time it would take to bring a currently closed methyl bromide factory back online. 

EPA will continue to explore the appropriate amount of reserve inventory. 

EPA’s rationale for proposing to allocate 1,936,302 kg of critical use methyl bromide from 

inventory in 2007 is discussed in the preamble to the Final Rule, and above in this document. In 

the final rule, the CSA calculations were also slightly adjusted in order to reflect exactly 7.5% of 

baseline. 

− One commenter states that existing methyl bromide inventory was produced legally and 

has no increased impact on the ozone layer. This commenter also states that the 

inventory is needed as a safety net in case the needs of the market surpass the production 

sanctioned by EPA. [0117] 

Response: The commenter’s conclusion regarding the environmental effects of existing 

inventory is addressed in the response to comments document for the Framework Rule. EPA has 

addressed comments regarding the need for a safety net in the preamble of the final rule. 

− One commenter states that EPA’s increased reliance on existing inventory compared to 

their original allocation in Decision Ex. XVII/9 is inconsistent with their previous 

actions. The commenter refers to the 2005 Allocation rule, for which EPA argued “that 

the Party’s allocation should stand as is, stating that the UNEP decision relevant to the 

2005 U.S. Allocation ‘indicates the total amount of the United States critical use need 

that should be met from inventory in 2005.’” [0136]

Response: EPA does not agree that proposing to allocate 1,936,302 kilograms (7.5% of 1991 

baseline) of methyl bromide from available inventory is inconsistent with previous Agency 

actions. Beginning with the 2006 CUE allocation, EPA has exercised its discretion to adjust the 

portion of critical use methyl bromide to come from exempted production or import as compared 

to the portion to come from pre-phaseout inventory (71 FR 5998). This continues to be an 

appropriate means of carrying out U.S. commitments as expressed in Decisions Ex. II/1 and 

XVII/9. 

• Four commenters argue that the amount of methyl bromide allocated under the CUE process 

has not been sufficient to meet grower demand since EPA and the Montreal Protocol Meeting 
-34- 

of the Parties significantly cut the amount requested by the forest nursery sector. The 

commenters believe that these cuts and the increased reliance and use of methyl bromide 

inventory have created market uncertainty, methyl bromide shortages, and methyl bromide 

price increases (46% increase for Forest-Nursery seedling growers). The commenters also 

state that the high price of methyl bromide has resulted in the use of alternative fumigants 

that have not been thoroughly tested. In order to stabilize the cost of methyl bromide while 

economical and viable alternatives are identified, the commenters request that: (a) EPA limit 

the use of methyl bromide inventory to the lower amount (1,621,702 kilograms) for the 2007 

CUE; and (b) for the 2008 CUE, EPA and the Department of State try to limit MBTOC’s 

requirements to use methyl bromide inventory as part of the U.S. CUE allocation process. 

[0106, 0107, 0109, 0110] 

Response: EPA appreciates the commenter’s input regarding the price of methyl bromide. The 

Agency continues to monitor methyl bromide prices as an indicator of shortages. EPA’s 

rationale for proposing to allocate 1,936,302 kg of critical use methyl bromide from inventory in 

2007 is discussed in the preamble to the Final Rule, and above in this document. 

• One commenter believes that EPA’s proposal to increase reliance on inventory “is not 

consistent with earlier announcements that put these supplies outside the realm of critical use 

exemption quotas.” [0123] 

Response: EPA has addressed these comments above in this document. 

• One commenter states that “EPA should not be including the use of inventory in any of the 

current or future rulings,” and states that inventories have dropped dramatically over the past 

3 years. [0125] 

Response: EPA has addressed this comment above and in the preamble to the final rule.

• Two commenters believe inventory should be only for critical use needs, and that therefore 

access to pre-phaseout methyl bromide inventory should be denied to non-critical users and 

restricted for critical users to prevent “double dipping,” as per the Montreal Protocol and 

Decisions. These commenters also believe that although reliance on inventory in the 

proposed rule is increased from previous years, the amount remains too low. The 

commenters believe that EPA should preferentially use the existing stockpiles to support 

CUEs and not allow any new production or importation unless the inventory is not sufficient 

to meet critical needs. [0122, 0132.1] 

Response: EPA has responded to these comments in the preamble to the final rule. 

− One commenter states that the preferential use of inventory is per the Decisions of the 

Montreal Protocol, and states that the proposal acknowledges “that the existing inventory 

is more than adequate to meet the proposed 6.2-7.5% gap between production/import and 

consumption.” [0122] 
-35- 

− The second commenter contends that any under-prediction of available inventory should 

be corrected by the exchange of critical use allocations (CUAs) for critical stock 

allocations (CSAs). The commenter states that the utilization of existing inventory first is 

in accordance with Decision IX/6. The commenter believes that the proposed rule should 

state that “the retirement of CUAs in exchange for CSAs shall be required” to prevent 

any additional methyl bromide production from adding to available inventory at the end 

of the control period. The commenter believes that this revision would minimize the 

production of new ODS while ensuring the availability of methyl bromide for critical 

uses. [0132.1] 

Response: EPA has responded to comments regarding its interpretation of Decision IX/6 in 

previous Federal Register notices and in the Response to Comments Document for the 

Framework Rule, available on the docket for that rule (EPA-HQ-OAR-2003-0230) as well as in 

the preamble to the 2007 CUE Final Rule. 

In the NPRM, EPA stated that if an inventory shortage occurs, EPA may consider various 

options including, but not limited to, promulgating a final version of the petition process 

proposed at 70 FR 62030, taking into account comments received on that proposal; proposing a 

different administrative mechanism to serve the same purpose; or authorizing conversion of a 

limited number of CSAs to CUAs through a rulemaking, bearing in mind the upper limit on U.S. 

production/import for critical uses (71 FR 38339). EPA is not implementing any of these options 

in this Final Rule. 

With regard to the commenter’s concern regarding carryover of newly produced amounts, all 

carry-over methyl bromide that was produced or imported under the critical use exemption in 

2005 was reported to EPA in 2006 and the total allowable level of new production/import in 

2007 has been reduced accordingly. This is an effective means of minimizing production of new 

ODS while ensuring the availability of methyl bromide for critical uses. 

6.b. Proposed Strategic Inventory 

Commenter Organization Document ID Number 

Betsy Peterson CA Bean Shippers Association 0113 

Steve Godbehere None 0117 

Stephen Payne Pet Food Institute 0118 

Nancy Sandrof Methyl Bromide Industry Panel of the American 

Chemistry Council 

0120, 0120.1 

Mark Reddick Reddick Fumigants, Inc. 0121, 0121.1 

Richard Matoian CA Fig Advisory Board 0124 

Michal Mellano CA Cut Flower Commission 0125 

David McAllister Chemtura Corporation 0136 

Amy Schaffer Weyerhaeuser Company 0142 

William Murray American Forest & Paper Association 0149 

• Six commenters agree with EPA’s suggested one-year stockpile standard as a minimum. 

[0117, 0118, 0120.1, 0121, 0124, 0136] 
-36- 

− Two of these commenters state that a strategic reserve large enough to supply at least 12 

months of U.S. demand amounts to 8,800,000 kilograms or 19.4 million pounds, based 

on 2005 usage, which constitutes 34% of the 1991 baseline. [0120.1, 0136] 

− Three commenters state that the one-year stockpile should be a minimum standard 

because the time frame is based on the standard used in the “essential use program” for 

CFCs and unlike alternatives to other ozone depleting substances, alternatives to methyl 

bromide are not universally effective in all geographic locations, even on the same crop, 

because of the large number of variables involved. The commenters also state that 

unexpected, sudden emergencies may also be more difficult to predict for methyl 

bromide due to the range and unpredictability of potential causative conditions. [0118, 

0121, 0136] 

• Five commenters favor a one-year strategic inventory, and propose that EPA should define 

one-year inventory as the amount requested in the 2005 CUN (i.e., 39% of the 1991 baseline 

or 24.2 million pounds). The commenters argue that this amount of inventory provides a 

reasonable margin necessary to address unexpected circumstances [0113, 0117, 0118, 0121, 

0124] 

• Two commenters suggest a 24 month inventory to maintain non-disruptive management. 

[0142, 0149] 

• One commenter supports the concept of applying a “strategic-reserve” approach to the 

critical use exemption program in order to mitigate a potential failure at the single methyl 

bromide production facility in the U.S. and to support unforeseen demand increases, but 

requests more information on how EPA would implement it in order to provide detailed 

comments. [0120.1] 

• One commenter believes that the strategic reserve of methyl bromide should be preserved at 

the current levels. [0125] 

Response: As the preamble to the Final Rule states, EPA has not reached any conclusion 

regarding what amount of methyl bromide would be appropriate to maintain as a strategic 

inventory. The Agency intends to continue exploring the issue in future rulemakings, 

particularly in the context of the 2008 critical use exemption. 

• While commending EPA for thinking strategically about the risks of inadequate CUE 

allocations, three commenters are of the opinion that establishing an emergency access 

procedure is the wrong solution since there is no effective mechanism in the Protocol to 

provide for emergency uses due to a natural disaster. The commenters state that the EPA 

should instead allocate production allowances for the full CUE approved by the Parties in 

Decision XVII/9. [0118, 0121, 0136] 

Response: In the preamble to the Final Rule EPA discussed options that it could take in the 

event of a severe inventory shortage. An emergency use exemption is contemplated in Decision 
-37- 

IX/7 to the Montreal Protocol, but EPA has not issued regulations implementing such an 

exemption. 

For reasons discussed in the preamble to the Final Rule and above in this document, EPA is 

allocating 4,316,055 kilograms of critical use methyl bromide for new production and import in 

2007, with 1,914,600 kilograms of critical use methyl bromide from existing inventory.

6.c. Accounting for Inventory and Disclosure of Inventory Information 

Commenter Organization Document ID Number 

David Doniger Natural Resources Defense Council 0122, 0122.1 

• One commenter states that EPA has failed to account for inventory, as it is required to do 

under the Montreal Protocol. Specifically, the commenter states that EPA will not disclose 

and account for the pre-2005 stockpile. The commenter states that the proposed rule does not 

comply with the requirements of Decisions KVII/9, ¶5 to comply with Decision IX/6 and to 

account for inventory. Additionally, the commenter asserts that “EPA has undertaken no

assessment of how much of the purported critical need could be met with inventory,” though 

“Decision IX/6 ¶1(b)(ii) permits new production and consumption of methyl bromide only if 

it is not available in sufficient quantity and quality from existing inventory of banked or 

recycled methyl bromide.” This commenter believes that inventory increased in 2003 and 

that much of this amount remains. [0122] 

Response: After publication of the NPRM (71 FR 38325) in July 2006, EPA released 

information on the pre-phaseout aggregate inventory at the end of 2003, 2004 and 2005, which is 

available on the docket for this action. EPA has addressed the issues the commenter raises in the 

preamble to the Final Rule. 

• One commenter is concerned that some of the existing 29 inventory holders may be 

attempting to evade EPA’s reporting procedures for inventory by “transferring the legal title 

to previously reported inventory to other entities, presumably entities that will ultimately use 

those inventories.” The commenter suggests that EPA could broaden its Section 114 

information gathering to ensure that it accounts for all inventories subject to Decision IX/6, 

thereby avoiding any “subterfuge of shifting ownership.” [0122] 

Response: EPA receives comprehensive annual data reports on inventories of methyl bromide 

from over 30 companies that produce, import, distribute or apply methyl bromide. Pursuant to 

reporting requirements at 40 CFR 82.13, producers, importers, distributors, and applicators are 

required to report the amount of inventory that they own, as well as the amount that they hold on 

behalf of another entity. EPA is not aware of circumstances in which a presumed end-user has 

sold its inventory of methyl bromide. Therefore, the Agency believes it is aware of virtually all 

existing inventories, and would be interested in any substantive information the commenter 

possesses suggesting that this is not the case. 
-38- 

7. Summary of Comments Relating to RULEMAKING AND THE 

REGULATORY PROCESS 

Commenter Organization Document ID Number 

Betsy Peterson CA Bean Shippers Association 0113 

None Albemarle Corporation 0116, 0116.1 

Steve Godbehere None 0117 

Stephen Payne Pet Food Institute 0118 

Pamela Peckman The Industrial Fumigant Company 0119

Nancy Sandrof American Chemistry Council 0120, 0120.1 

Mark Reddick Reddick Fumigants, Inc. 0121, 0121.1 

David Doniger Natural Resources Defense Council 0122, 0122.1 

Richard Matoian CA Fig Advisory Board 0124 

Michal Mellano CA Cut Flower Commission 0125 

Marcy Martin CA Grape & Tree Fruit League 0126 

Bruce Houtman Dow AgroSciences LLC 0132, 0132.1, 0132.2 

David McAllister Chemtura Corporation 0136 

Edward Ruckert McDermott, Will & Emery for the Crop 

Protection Coalition 0139 

Steve Hensley USA Rice Federation 

0141, 0141.1, 0141.2, 0141.3, 

0141.4, 0141.5, 0141.6, 0141.7, 

0141.8 

Amy Schaffer Weyerhaeuser Company 0142 

George Lowerts International Paper 0145 

William Murray American Forest & Paper Association 0149 

Gene Harrington NPMA 0150 

• Fourteen commenters object to EPA’s decision to reduce the total level of new production 

and import for critical uses by 443,000 kilograms to reflect the total level of carry-over 

material available at the end of 2005. They contend that the 2005 carry-over quantity was 

primarily attributable to EPA’s promulgating the supplemental CUEs in December, 2005 

which did not allow enough time to use the issued critical use methyl bromide before the end 

of the year. They state it is unfair to penalize stakeholders for EPA’s inability to promulgate 

regulations in a timely manner. [0113, 0116.1, 0118, 0119, 0120.1, 0121, 0124, 0125, 0126, 

0136, 0139, 0141, 0149, 0150] 

Response: EPA has addressed these comments in Section V.C. of the preamble to the Final 

Rule.

− Two of these commenters also state that the delay in finalizing the CUEs for 2006 forced 

distributors to carry over some critical use methyl bromide from 2005 to meet early 

orders. [0120.1, 0116.1] 

Response: EPA has addressed these comments in Section V.C. of the preamble to the Final 

Rule.

− Additionally, one commenter believes that since 2005 was the first year of 

implementation of the CUE program, systems of ordering, distributing and selling critical 

use methyl bromide were not up and running from January 1, the date the framework rule 

took effect. The commenter states that since the Final Rule was not published until 
-39- 

December 23, 2004, producers, importers, and distributors of methyl bromide did not 

have sufficient time to implement the details of the rule before the calendar year started. 

The commenter thus urges the EPA to suspend the carry-over reduction for this first year. 

[0120.1] 

Response: EPA has addressed these comments in Section V.C. of the preamble to the Final 

Rule.

- This commenter further contends that this unfairly penalizes producers, importers 

and distributors of methyl bromide who had no carry-over inventory in 2005 since 

the reduction applies to all allocations in 2005. The commenter states that those 

entities that had a carry-over inventory in 2005 are “rewarded” since they not only 

have the carry-over amount but also have a portion of the 2007 allocation. The 

commenter recommends that the EPA should apply a reduction on a companyspecific basis – i.e. the reduction should be equal to the reported carry-over by the 

company – rather than on 1991 baseline market shares. [0120.1] 

Response: EPA proposed and finalized an across-the board approach for deducting carry-over 

amounts in the Framework Rule, stating that “EPA is creating a system for deducting the amount 

of unused methyl bromide from the total number of allowances” (69 FR 76997). Based on 

comments and other feedback the Agency has received, EPA does not anticipate a significant 

amount of carry-over of methyl bromide in future years. Therefore, EPA is not planning to 

revisit the across-the-board approach at this time. 

− One commenter states that the delayed 2005 supplemental allocations not only granted 

requests for additional amounts of methyl bromide, but also added six critical uses that 

had been authorized by the Parties at their 16th meeting in November 2004. These uses 

were allocated no critical use methyl bromide for 2005 prior to December. [0136] 

Response: The Agency is making a strong effort to finalize allocation rules earlier in each 

calendar year to avoid the type of complications that the commenter describes. 

− Two commenters state that there are many reasons why methyl bromide may not be used 

in a given year that do not entail a reduction of allocation in following years. These 

situations include lower than expected pathogen loads, crop production changes, and 

other short term decisions. [0142, 0149] 

Response: As discussed in the preamble to the Final Rule, EPA is deducting the amount of 

unused methyl bromide from the total number of allowances for new production and import 

issued for the control period following the control period immediately after the control period 

when the methyl bromide was unused for critical uses. This approach does not reduce the 

amount of total methyl bromide available to critical users based on lower than anticipated methyl 

bromide use in previous years. Following a year when methyl bromide use was less than 

anticipated, the amount of methyl bromide available to critical users is still determined by the 

critical use allocation process and not the amount of unused methyl bromide in previous years. 
-40- 

Unused methyl bromide only affects the proportion of critical use methyl bromide from new 

production and import versus post-phaseout inventory.

• Five commenters state that it is inappropriate for the EPA to revisit the technical analysis 

contained in the 2007 CUN at this late stage in the allocation process. They state that 

revisiting the 2007 CUN analysis ignores the fact that the Parties have already authorized the 

quantity of methyl bromide for 2007 and new developments from the time when the critical 

use community prepared its application season have already been incorporated into the Partyapproved numbers. [0113, 0117, 0118, 0121, 0136] 

Response: EPA does not agree that new developments have in all cases been incorporated into 

the numbers approved by the Meeting of the Parties. For example, in the NPRM EPA sought 

information regarding changes to the registration or use of alternatives that may have transpired 

after the 2007 U.S. nomination was completed. Such information has the potential to alter the 

technical or economic feasibility of an alternative and could thus prompt EPA to modify its 

analysis of which uses and what amounts of methyl bromide qualify for the critical use 

exemption. EPA strives to use the best available information in its analyses and rulemakings. 

• Four commenters suggest that the EPA should move to a three-year CUE cycle instead of the 

current annual one to reduce the administrative burden and improve timeliness in the 

allocation process. [0113, 0117, 0125, 0145] 

Response: The United States Government has argued for multiple-year exemptions, but to date 

other Parties to the Montreal Protocol have not agreed to this approach. As a result, critical use 

exemptions are currently nominated, authorized and allocated on an annual basis. 

• One commenter expresses concern that the CUE process has become time and resource 

intensive for stakeholders, especially for small users. [0113] 

Response: EPA remains sympathetic to the commenter’s concerns about the time and resource 

burden on small CUE applicants. For similar reasons, EPA allowed recipients of very small 

amounts of critical stock allowances, on a voluntary basis, to permanently relinquish their 

allowances. While EPA did not receive any comments or responses to this portion of the NPRM, 

EPA may consider re-proposing this option in future rulemakings. EPA will continue to strive to 

balance the need for thorough CUE applications, with concerns about time and resource burdens. 

However, as stated in the Final Rule, EPA is not revising the 2007 CUE analysis at this time. 

• Two commenters state that the downward adjustment of the amount of critical use methyl 

bromide in 2007 attributable to new production or importation was made by EPA and USDA 

without the full involvement of each affected applicant. [0126, 0139] 

Response: In the NPRM, EPA proposed to allocate critical stock allowances (CSAs) for 2007 

in an amount equal to either 6.2% or 7.5% of the 1991 baseline (25,528,000 kilograms) and 

sought comment on this proposal. In the Final Rule, the Agency is allocating CSAs equal to 

7.5% of baseline (1,914,600 kilograms). Section V.G. of the preamble to the Final Rule 

describes the reasons for this action. EPA considered all of the comments relevant to this 
-41- 

decision. As discussed in the preamble to the Final Rule and in this document, the comments 

EPA received regarding the amount of methyl bromide from new production and import were 

diverse in their opinions. For example, some commenters wanted all critical use methyl bromide 

to come from inventory with no new production and import, while other commenters would like 

substantially more new production and import than EPA is allocating. As discussed in the Final 

Rule, EPA’s decision was made in light of the comments received as well as EPA’s obligations 

and commitments under the Clean Air Act and the Montreal Protocol.

• One commenter believes that EPA violates Decision IX/6 on multiple fronts: 

− The commenter states that by arguing that it is bound to only paragraph 1 of Decision 

IX/6 and is free to ignore the conditions imposed in subsequent paragraphs of the same 

Decisions, EPA has exhibited a partial “pick and choose” compliance. Referencing 

Clean Air Act section 604(d)(6), the commenter contends that EPA does not have the 

discretion to refashion the Parties’ Decisions by disregarding the later paragraphs and the 

conditions they impose. 

Response: EPA has addressed these and similar comments in the Preamble of the Final Rule, the 

Response to Comment Documents for the Framework Rule and the 2006 CUE Rule, and in 

previous Federal Register notices. EPA is not disregarding any Decision language: the 

commenter simply disagrees with EPA’s interpretation of certain language.

− In relation to the initial 2005 CUE Rulemaking, one commenter contends that in spite of 

a clear obligation to abide by Decision IX/6’s conditions, EPA issued the original 2005 

exemptions in December 2004 without any assessment of compliance with the Decision 

IX/6 criteria as set forth in paragraph 5 of Decision Ex. I/3. Specifically, the commenter 

argues, EPA failed to comply with the following requirements: 

-to disclose and account for methyl bromide inventory, 

-to prevent non-critical users from using such inventory and to prevent critical users 

from “double-dipping” – using both inventory and new production in amounts that 

exceed their approved critical use needs, 

-to reduce new production and consumption to only the minimum amount needed to 

service critical uses after accounting for inventory, and 

-to restrict critical uses to the minimum amount that reflects the use of all 

technologically and economically feasible alternatives. 

Additionally, this commenter contends that in relation to the supplemental 2005 CUE 

Rulemaking, by proposing to authorize a further 611 metric tons of critical stock allowances 

for supplemental critical uses in 2005, the EPA failed to comply with Decisions XVI/2 and 

IX/6. 

This commenter further objects to the proposed “advance” approval of supplemental critical 

uses. The commenter believes that domestic approval should not be granted without full 

review and approval in a Decision of the Parties. The commenter believes that any such 

decision is likely to require subsequent second reviews to assure compliance with Decision 

IX/6 conditions and allow the public to comment on EPA’s proposed result. [0122] 
-42- 

Response: EPA has addressed the commenter’s arguments in the Preamble to the Final Rule. 

The Response to Comment Documents for the Framework Rule and the 2006 CUE Rule, 

available on the docket for that rule (EPA-HQ-OAR-2003-0230) and in previous Federal 

Register notices. . 

• Two commenters believe that EPA should publish a proposed allocation rule based on the 

amount of methyl bromide contained in the U.S. nomination to the Parties rather than after 

the Parties have finalized the CUE amount to be granted to the U.S. The commenters believe 

that this would allow the public to comment earlier on in the process and allow EPA to issue 

a Final Rule allocation in a more timely manner. [0139, 0141] 

Response: EPA appreciates the commenter’s suggestion and will continue to consider a variety 

of approaches to issuing final CUE allocation rules in a timely manner. 

• One commenter recommends that EPA: 

- Utilize all available information at the time of allocation to minimize the 

continued U.S. reliance on methyl bromide. This should also include updates to 

conclusions based on old data since in many cases, estimates of yield losses are 

based on old data. 

- Recognize that in the three years that it usually takes to complete the CUE 

process, there can be dramatic, dynamic changes in the status of methyl bromide 

and the potential alternatives. New technologies, product registrations, conditions 

of “re-registration,” and the implementation of local, state, or federal restrictions 

on either methyl bromide or alternatives can have a profound effect on the 

capacity of alternatives to serve as a viable replacement. The commenter thus 

encourages EPA to seek new information on a regular, ongoing basis. 

Response: EPA strives to use the best available information in its analyses. EPA sought 

comment on any information regarding changes to the registration or use of alternatives that may 

have transpired after the 2007 U.S. nomination was written. Such information has the potential 

to alter the technical or economic feasibility of an alternative and could thus cause EPA to 

modify the analysis that underpins EPA’s determination as to which uses and what amounts of 

methyl bromide qualify for the critical use exemption. While EPA is not revising the technical 

analysis at this time due to the lack of new information regarding the registration or use of 

alternatives, EPA will continue to consider such information in future rulemakings. 

− Provide incentives to private industry to further develop and refine viable alternatives to 

methyl bromide and to consumers to utilize these alternatives. 

Response: EPA believes that the phase-out of methyl bromide, except for critical uses, provides 

incentives for private industry to utilize alternatives. In addition, the United States Government 

continues to support research and adoption of alternatives. 

− Utilize information presently available to EPA to require that all existing inventory of 

methyl bromide and the amounts left over from the 2005 CUE process are utilized prior 
-43- 

to authorizing the production of new volumes. In this context, the commenter cites the 

Section 114 “data call-in” [information request] issued by EPA. [0132.1] 

Response: EPA has addressed this and similar comments regarding use of all existing inventory 

prior to authorization of new production in the response to comment documents for the 

Framework and 2006 CUE rules, in prior Federal Register notices, and in the Preamble of the 

Final Rule. EPA is deducting 2005 carryover amounts in the 2007 allocation. 

• One commenter requests that EPA be more transparent in its calculation processes. The 

commenter states last year’s miscalculation of critical use allowances for post-harvest uses 

by 20% as a basis for the request. [0150] 

Response: Consistent with previous years, EPA has made its calculations available on the 

docket in a spreadsheet entitled Allowance Allocations Docket Final (EPA-HQ-OAR-2005-

0538-0054).