RESPONSES TO PUBLIC COMMENTS FOR THE NOTICE OF 

PROPOSED RULEMAKING: THE 2008 CRITICAL USE 

EXEMPTION FROM THE PHASEOUT OF METHYL BROMIDE

U.S. ENVIRONMENTAL PROTECTION AGENCY 

OFFICE OF AIR AND RADIATION 

DECEMBER 19, 2007
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TABLE OF CONTENTS 

Section Page 

1. PROPOSED CRITICAL USES ........................................................ 3 

1.1 Approved Critical Uses................................................. 3 

1.1.1. Pre-Plant Approved Critical Uses......................... 3 

 1.1.1.A. Golf Courses and Turf Producers.................. 3 

1.1.2. Post-Harvest Approved Critical Uses..................... 4 

1.2 Approved Critical Users and Locations of Use..................... 5 

1.3 Limiting Critical Conditions........................................... 6 

1.3.1. Pre-plant Limiting Critical Conditions................... 6 

1.3.2. Post-Harvest Limiting Critical Conditions............... 6 

2. PROPOSED CRITICAL USE AMOUNTS.................................... 8 

3. PROPOSED CALCULATION OF AVAILABLE STOCKS................. 12 

3.1 The Supply Chain Factor............................................... 12 

4. PROPOSED TREATMENT OF CARRYOVER MATERIAL.............. 23 

4.1 The Petition Submitted By Chemtura Corporation.................. 26 

4.2 Reporting Requirements to Calculate Carryover Amounts........ 28 

5. CRITICAL USE METHYL BROMIDE FOR RESEARCH PURPOSES. 30 

6. METHYL BROMIDE ALTERNATIVES...................................... 31 

6.1 Post-Harvest Alternatives.............................................. 31 

6.2 Pre-Plant Alternatives................................................... 34 

7. THE CRITERIA IN DECISIONS IX/6 and EX.I/4........................... 40 

8. EMISSIONS MINIMIZATION.................................................. 41 

9. PROPOSED CRITICAL USE ALLOWANCE ALLOCATIONS.......... 43 

10. PROPOSED CRITICAL STOCK ALLOWANCE ALLOCATIONS 

AND TOTAL VOLUMES OF CRITICAL USE METHYL BROMIDE..... 46 

11. STOCKS OF METHYL BROMIDE.......................................... 48 

11.1 Treatment of Stocks................................................... 48 

11.2 Confidentiality of Aggregate Pre-Phaseout Inventory Data...... 49 

12. RULEMAKING AND THE REGULATORY PROCESS.................. 51 

Appendix. Commenters at the Public Hearing for This Rulemaking.......... 54 
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1. Comments Relating to the SECTION V.C.1 PROPOSED CRITICAL 

USES 

What We Proposed: 

 The comments in this section correspond to Section V.C. of the preamble to the 

proposed rule and address approved critical uses, approved critical users and locations of 

use and limiting critical conditions as listed in Table I of the preamble. 

Comments relating to this section 

Commenter Organization Document ID # 

Gene Harrington National Pest Management Association OAR-2006-1016-0137 

David Mueller Fumigation Service & Supply, Inc. OAR-2006-1016-0144 

Bruce Houtman Dow AgroSciences, LLC OAR-2006-1016-0152 

Dan Haley Walnut, Prune, and Fig Industry Hearing 1

Joel Jackson Florida Golf Course Superintendents 

Association Hearing 8 

Bryan Unruh University of Florida Hearing 10 

1.1 Approved Critical Uses 

1.1.1. Pre-Plant Approved Critical Uses 

1.1.1.A. Golf Courses and Turf Producers 

Comment: 

 At the public hearing for this action, the Florida Golf Course Superintendents 

Association (FGCSA) and a researcher from the University of Florida noted that the golf 

and turf industry has been identified as a critical user of methyl bromide in Caribbean and 

Latin American countries, but not in the U.S. The commenters asserted that golf and turf 

uses are unfairly judged as frivolous, but that they are legitimate businesses and deserve 

consideration under the Protocol. The commenters stated that golf and turf was an 

approved Critical Use Exemption (CUE) user during the initial cycle of the CUE review 

process, since which the state of alternatives has not changed for the industry. [Document 

ID: Hearing 8, Hearing 10] 

Our Response: 

 As the commenter correctly noted, EPA nominated turf as a critical user of methyl 

bromide in every nomination up to and including the 2008 Critical Use Nomination 

(CUN). In 2006, the Parties to the Protocol did not include golf or turf as a critical use in 

table C of the annex to Decision XVIII/13, which set forth the agreed critical-use 

categories for 2008. EPA did not submit a nomination for turf or golf uses in 2007 for 

the 2009 growing season. EPA however, notes its disagreement with the categorization 

 

1

 Refers to Section V.C. of the August 27, 2007, Proposed 2008 CUE Rule (72 FR 48956) 
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that the golf and turf industries are critical users in Caribbean and Latin American 

countries. The Protocol establishes 2015 as the date by which Article 5 countries must 

phase out the use of methyl bromide. Thus, as of yet, there is no critical use exemption 

process for Article 5 countries.

 

Comment: 

 At the public hearing for this rulemaking, FGCSA commented that golf and turf is 

the only sector to have shown actual market disruption figures (in an amended CUE 

application). The commenter further stated that without a supply of pre-plant methyl 

bromide, the golf industry has to use larger quantities of traditional pesticides to fight 

weeds, diseases, and insects, which runs counter to EPA’s mission to protect the 

environment. [Hearing 8] 

Our Response: 

 

The Methyl Bromide Technical Options Committee (MBTOC) did not 

recommend turf as an approved critical use for 2008 in its report published September 

2006. MBTOC’s rationale for not recommending turf as an approved critical use was 

that effective alternatives are available, and that alternatives such as dazomet provide 

comparable control of off-type grasses. Furthermore, recent research presented at the 

2006 Methyl Bromide Alternatives Outreach conference by Robert Walker and Jason 

Belcher of Auburn University suggests that there are effective alternatives to methyl 

bromide for sod production. This presentation is available online at 

http://www.mbao.org/2006/06Proceedings/mbrpro06.html, or upon request from the 

contact listed for this rulemaking. While EPA is concerned about the environmental 

effects of alternatives, EPA does not believe that the environmental effects of using 

traditional pesticides, especially when used in accordance with their FIFRA labeling, is a 

technical barrier to their adoption.

1.1.2. Post-Harvest Approved Critical Uses 

Comment: 

 

Fumigation Service & Supply, Inc. (FSS) noted that post harvest application 

requests by North American Millers Association (NAMA), NPCA, Pet Food Institute, 

and U.S. Rice Millers Association were for applications for which methyl bromide is not 

necessary, and stated that they should not receive CUE allocations. [OAR-2006-1016-

0144] 

Our Response: 

 

EPA is aware that sulfuryl fluoride is a feasible alternative for some post-harvest 

applications in the sectors mentioned by the commenter. However, in assessing the need 

for methyl bromide for these applicants, the U.S. Government (USG) and the Parties to 

the Montreal Protocol on Substances that Deplete the Ozone Layer (Parties) have agreed 
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that given certain limiting critical conditions, sulfuryl fluoride is not currently a feasible 

alternative for all applications in these post-harvest sectors. In the 2008 CUN, USG 

included annual transition rates for sulfuryl fluoride between 12-18% for the sectors that 

the commenter referred to. These transition rates were applied because EPA’s analysis 

suggests that more time will be needed for these sectors to fully transition. 

 

 The 2008 U.S. CUN assessed the feasibility of methyl bromide alternatives for 

each of these uses, and found that the specific uses listed in column B of Table I in the 

preamble to the proposed rule, with limiting critical conditions listed in Column C, 

should qualify for critical use methyl bromide in 2008. Section V.C. of the preamble to 

the proposed rule explained that those uses were also approved by the Methyl Bromide 

Technical Options Committee (MBTOC), an advisory body to the Parties, and were 

agreed to by the Parties in Decision XVIII/13. With the exception of NPMA cocoa bean 

fumigation, discussed more in Section V.D.6. of the proposed rule, the approved critical 

uses that the commenter objected to were also recommended for critical use methyl 

bromide in the 2009 U.S. CUN, which EPA considers the best available assessment of 

methyl bromide alternatives. Furthermore, in September 2007 the Parties agreed, in 

Decision XIX/9, that these uses should qualify for critical use methyl bromide in 2009. 

 As demonstrated by the case of NPMA cocoa bean fumigation, EPA continues to 

assess the feasibility of alternatives, and will adjust critical use nominations and 

allocations accordingly, based on the best available information. 

1.2 Approved Critical Users and Locations of Use 

Comment: 

The National Pest Management Association (NPMA) requested that EPA revise 

the description of NPMA’s use pattern in Column B of Appendix L on page 48980. The 

commenter stated that the following language more accurately describes the NPMA use 

patterns, and is also consistent with the language from the final allocation rules in the 

2005 supplemental rule and the 2006 and 2007 allocation rules: 

“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.” [OAR-2006-1016-0137] 

Our 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.

1.3 Limiting Critical Conditions 
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1.3.1. Pre-plant Limiting Critical Conditions 

Comment: 

 Dow AgroSciences, Inc. (Dow) requested that some of the pre-plant limiting 

critical conditions be removed or modified in the final rule. For example, the commenter 

stated that with the availability of 1,3-Dichloropropene (1,3-D) as a nematicide, 

“nematode infestations” should not qualify as a limiting critical condition. [OAR-2006-

1016-0152] 

Our Response: 

 The 2008 CUN explains that 1,3-D is effective against nematodes, but 1,3-D is 

not a feasible alternative for many growers. For example, the 2008 CUN states that 

approximately 40% of Florida tomato land has karst geology, which precludes the use of 

1,3-D because of groundwater contamination that could result. For many growers that 

can not use 1,3-D, nematode infestation is a condition for which methyl bromide is the 

only feasible treatment option. Therefore, nematode infestation remains a legitimate 

limiting critical condition for many growers. As discussed more below, EPA has 

adjusted pre-plant critical use exemption amounts to account for the fact that 1,3-D is 

often a feasible alternative for land without karst geology. As a result, EPA assumes that 

market forces will dictate that critical use methyl bromide will not be used against 

nematodes for growers that can use 1,3-D instead. 

 

1.3.2. Post-Harvest Limiting Critical Conditions 

Comment: 

 Dow commented that some post-harvest use limiting critical conditions are no 

longer relevant and should be removed. The commenter also noted that sufluryl fluoride 

has superseded phosphine and heat as the preferred alternative in post-harvest use 

categories. The conditions that the commenter requested for removal were: 1) Time to 

transition to an alternative; 2) older structures that cannot be properly sealed; 3) presence 

of sensitive electronic equipment subject to corrosion by phosphine; and 4) rapid 

fumigation. [OAR-2006-1016-0152] 

Our Response: 

 

 EPA addresses the transition rate and overall feasibility of sulfuryl fluoride for 

post-harvest sectors in Section V.D.6. of the preamble to the final rule. Section V.C. of 

the preamble to the final rule explains that EPA has removed “the inability to seal older 

structures” as a limiting critical condition from the rule text. As discussed in the 2008 

CUN, research is still ongoing regarding the efficacy of sulfuryl fluoride for the postharvest critical uses listed in Table I of the preamble, and EPA must ensure that postharvest sectors have sufficient time to validate and adopt the new technology. Therefore, 

the presence of sensitive electronic equipment remains a proper limiting critical condition 
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for critical use applications that would otherwise use phosphine, which corrodes 

electronic equipment. 

 

 Regarding the rapid fumigation limiting critical condition for certain post-harvest 

sectors, the United States Department of Agriculture (USDA) Agriculture Research 

Service (ARS) is currently conducting research on the efficacy and practicality of using 

alternative fumigants, including sulfuryl fluoride, to control post-harvest pests of durable 

commodities such as nuts and dried fruit. While acknowledging that sulfuryl fluoride 

appears to have the potential to provide effective and rapid vacuum fumigation of nuts 

and dried fruit, the Agency must ensure that the tree nut and dried fruit industry has 

sufficient time to validate and adopt the new technology. Therefore, rapid fumigation 

remains a valid limiting critical condition for the sectors where it is listed in Table I of 

the preamble. 
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2. Comments Relating to Section V.D. PROPOSED CRITICAL USE 

AMOUNTS 

What We Proposed: 

 The comments in this section correspond to Section V.D. of the preamble to the 

proposed rule and address proposed critical use amounts. EPA proposed 4,816,515 kg of 

methyl bromide to satisfy critical uses in 2008, with 3,101,075 kg from new production 

or import, and 1,715,438 kg supplied from existing pre-phaseout inventory. In Section 

V.D. EPA proposed to reduce the amount of 2008 new production agreed to by the 

Parties to account for: the amount of stocks available for critical uses, the amount of 

methyl bromide for research purposes, carryover critical use material from 2006, and new 

information about the feasibility of alternatives. 

Comments relating to this section 

Commenter Organization Document ID 

Daniel Botts Florida Fruit & Vegetable Association OAR-2006-1016-0134 

Edward Ruckert Crop Protection Coalition OAR-2006-1016-0135 

Steven Hensley USA Rice Federation OAR-2006-1016-0136 

James Bair North American Millers’ Association OAR-2006-1016-0143 

David Mueller Fumigation Service & Supply, Inc. OAR-2006-1016-0144 

David Doniger Natural Resources Defense Council OAR-2006-1016-0145 

Charles Hall Georgia Fruit and Vegetable Growers Assoc. OAR-2006-1016-0146 

Charles Franklin and Paul 

Gutterman Chemtura Corporation OAR-2006-1016-0147 

Shawn Crocker Florida Strawberry Growers Association Hearing 7 

Reggie Brown Florida Tomato Exchange Hearing 9 

Comment: 

 Seven commenters objected to EPA’s proposed maximum allowable amount of 

methyl bromide to be used for critical uses in 2008 on the grounds that it is lower than 

required by the Parties to the Montreal Protocol and that it underestimates the actual 

methyl bromide need for crops. [OAR-2006-1016-0134, 0135, 0136, 0143, 0146, 147, 

Hearing7, Hearing9] 

Our Response: 

 

 EPA is implementing reductions to the total amount of methyl bromide authorized 

for critical uses by the Parties in Decision XVIII/13 for two reasons. First, EPA is 

making reductions of 27,769 kg to account for new information about the feasibility of 

iodomethane and sulfuryl fluoride, as discussed in Section V.D.6. of the preamble to the 

final rule. Second, EPA is making reductions of 499,234 kg to account for carryover 

critical use material from 2006, as discussed in Section V.D.4. of the preamble to the 

final rule. 
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 In the preamble to the proposed rule, EPA sought new information about the 

feasibility of alternatives and stated that such information had the potential to alter EPA’s 

determination as to what amounts of methyl bromide qualify for the critical use 

exemption in 2008 (72 FR 48960). As discussed in Section V.D. of the preamble to the 

final rule, EPA received new information about alternatives after the proposed rule was 

published, and is making appropriate adjustments in the final rule to account for that 

information. New information justifying increased uptake of methyl bromide alternatives 

warrants reductions in the overall amount authorized by the Parties because it reduces the 

overall need for methyl bromide to satisfy critical needs in 2008. 

 In the Framework Rule (69 FR 76982), EPA established a system to reduce 

critical use amounts to account for unused carryover amounts of critical use methyl 

bromide from previous years. The implementation of this policy is discussed in detail in 

Section V.D.4. of the preamble to the final rule. It is appropriate to reduce the total 

critical use amount to account for carryover, because the pool of critical use material 

unused in previous years is available for critical uses in subsequent years. Therefore, 

carryover amounts can offset the need for a certain amount of new production, import or 

supplies from pre-phaseout inventory. 

Comment: 

 Two commenters stated that the methyl bromide allocations are reduced at each 

stage of the review process and should not be further reduced by the Agency. [OAR2006-1016-0135, 0136] 

Our Response: 

 The commenters are correct that methyl bromide amounts for critical uses are 

adjusted as EPA prepares nominations, the Parties approve critical use amounts, and EPA 

allocates CUEs in a notice-and-comment rulemaking. Each of these steps in the 

exemption process represents an independent assessment of the critical need for methyl 

bromide, and adjustments are made accordingly. 2008 requests for critical use methyl 

bromide were 62.4% of the 1991 baseline. After thorough technical and economic 

analysis described in the 2008 CUN, the USG nominated 23.1% of baseline for 2008. As 

described in more detail in the preamble of the final rule, the Parties to the Montreal 

Protocol authorized the equivalent of 21.0% of baseline for 2008 critical uses. For 

reasons described in the preamble of the final rule, further reductions were taken to 

account for new information about the feasibility of alternatives and carryover critical use 

methyl bromide not used in 2006. The final rule allocation amounts of critical use methyl 

bromide are equivalent to 18.8% of baseline (with 6.7% coming from pre-phaseout 

inventory). While the USG endeavors to allow the private sector to supply adequate 

levels of methyl bromide for critical users by nominating and negotiating for adequate 

amounts of critical use methyl bromide, it will not allocate to uses for which there are 

feasible alternatives. Reductions are informed by the best available information, and 

recommendations from relevant technical experts. 
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Comment: 

 The commenter believes that the Agency should not change the amounts of CUE 

methyl bromide approved by the Parties because this allocation is the amount that U.S. 

economic competitors believe is necessary. The commenter believes that only substantial 

changes in the technical and economic feasibility of potential alternatives should cause 

the Agency to alter the Parties’ allocations. [OAR-2006-1016-0143] 

Our Response: 

EPA explains the reasons for reducing the amount of methyl bromide authorized 

by the Parties in the preamble to the final rule. The Agency reiterates that critical use 

exemptions are only for those areas where technically and economically feasible 

alternatives are not available, and thus EPA changes the amount authorized by the Parties 

based upon new information about the technical and economic feasibility of alternatives. 

For example, in this final rule, EPA is altering the amounts authorized by the Parties due 

to additional information about the feasibility of the alternatives sulfuryl fluoride and 

iodomethane. See Section V.D.6 of the preamble for further discussion. EPA is also 

making adjustments based on the amount of carryover critical use methyl bromide from 

previous years, as discussed in Section V.D.4. of the preamble to the final rule, because 

that material, which can be used for critical uses, offsets the need for additional critical 

use allowances (CUAs) or critical stock allowances (CSAs). 

Comment: 

 At the public hearing for this action, a representative of the Florida Strawberry 

Growers Association commented that foreign markets that have access to methyl bromide 

will out-compete the U.S. as U.S. methyl bromide users lose access. Therefore, the 

commenter requested that EPA approve larger amounts of methyl bromide under the 

critical use exemption. [Hearing 7] 

Our Response: 

 The Parties to Protocol agreed to phase out use of methyl bromide in 

industrialized countries and ultimately set 2005 as the date for completion of that 

phaseout. The Parties set 2015 as the date for the phaseout in Article 5 (developing) 

countries. Therefore, the Parties to the Protocol recognized that developing countries 

may have access to methyl bromide for a longer period of time. 

 When the Parties negotiated the definition of the CUE they included economic 

feasibility as a major criterion, which should limit some of the competitive disadvantage 

that could result from the 10-year methyl bromide phaseout lag for Article 5 countries. 

Concerns about the competitiveness of U.S. specialty crop growers may be tempered 

because U.S. acreage for crops affected by the methyl bromide phaseout, such as 

strawberries, continues to grow. 
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Comment: 

 Fumigation Service & Supply, Inc. (FSS) commented that the Copenhagen 

Amendment was signed by the U.S. to phaseout methyl bromide 14 years ago, and 

believes that this time period has been adequate for all users of methyl bromide to switch 

to alternative fumigation methods. The commenter believes that no methyl bromide 

CUEs should be allocated, and that such allocations penalize companies that already 

phased out methyl bromide. [OAR-2006-1016-0144] 

Our Response: 

 

 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. However, the USG 

continues to support research and adoption of alternatives. In an effort to speed adoption 

of alternatives, the USG has invested over $150 million in research on potential methyl 

bromide substitutes and alternatives. Promotion of alternatives through education and 

extension, and robust testing and assessment of alternatives continue to be USG 

priorities. 

Comment: 

 One commenter requests that EPA make a reduction in the 2008 CUE allocations 

of at least 1,275 metric tons (5% of the baseline), and by larger amounts in 2009 due to 

advancements in using sulfuryl fluoride and iodomethane. [OAR-2006-1016-0145] 

Our Response: 

 As discussed above, EPA is reducing the total 2008 CUE allocations by 17,690 kg 

to account for the increased uptake of sulfuryl fluoride for cocoa bean fumigation and by 

14,472 kg to account for the uptake of iodomethane in 2008. It would be inappropriate, 

at this time, to estimate whether additional reductions will be made for either of these 

alternatives in the 2009 CUE allocation rulemaking.
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3. Comments Relating to the Section V.D.2. CALCULATION OF 

AVAILABLE STOCKS 

What We Proposed: 

 The comments in this section correspond to Section V.D.2. of the preamble to the 

proposed rule and address EPA’s proposed refined method for determining available 

stocks. In this section EPA proposed to include a supply chain factor (SCF) in its 

determination of the amount of pre-phaseout inventory available for critical uses in 2008. 

Comments relating to this section 

Commenter Organization Document ID 

Pamela Peckman The Industrial Fumigant Company OAR-2006-1016-0133 

Edward Ruckert Crop Protection Coalition OAR-2006-1016-0135 

Steven Hensley USA Rice Federation OAR-2006-1016-0136 

James Bair North American Millers’ Association OAR-2006-1016-0143 

David Mueller Fumigation Service & Supply, Inc. OAR-2006-1016-0144 

David Doniger Natural Resources Defense Council OAR-2006-1016-0145 

Charles Hall Georgia Fruit and Vegetable Growers Assoc. OAR-2006-1016-0146 

Charles Franklin and Paul 

Gutterman Chemtura Corporation OAR-2006-1016-0147 

Bruce Houtman Dow AgroSciences, LLC OAR-2006-1016-0152 

Jim McBriarty Ameribrom Inc. Hearing 2 

Comment: 

 One commenter noted that EPA made a mathematical error in its calculation of 

available stocks in the proposed rule by listing existing stocks as 7,671,091 kg, which is 

the correct value, but using the value 7,671,000 kg in its calculation. As a result, EPA 

underestimated available stocks by 91 kg. [OAR-2006-1016-0149] 

Our Response: 

As discussed in Section V.D.2. of the preamble to the final rule, EPA has 

corrected the calculations in the final rule.

3.1 The Supply Chain Factor 

Comment: 

 One commenter believes that EPA’s proposal to draw down stocks jeopardizes 

the U.S.’s ability to address a catastrophic supply disruption. [OAR-2006-1016-0149] 

Our Response:

EPA proposed a SCF in its analysis of available stocks to accommodate a 

catastrophic supply disruption such as the one mentioned by the commenter. EPA used 
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conservative assumptions in the scenario analyzed for the SCF estimate, which is 

described in the Technical Support Document (TSD) on the docket. EPA believes that 

this final rule provides suppliers with the opportunity to maintain an adequate supply 

buffer to satisfy critical needs in the event of such an emergency. 

Comment: 

 Seven commenters supported the creation of an SCF, but asserted that the 15 

week SCF suggested for use in the event of a supply disruption is inadequate and 

recommend a one-year supply instead. [OAR-2006-10106-0135, 0136, 0143, 0146, 0147, 

0149, Hearing2] 

Our Response: 

 The commenters may have misunderstood EPA’s analysis as described in the 

TSD. We found that it would take up to 15 weeks for adequate amounts of methyl 

bromide imports to reach the U.S. if there is a domestic production failure. However, we 

also considered the variability of production volumes throughout the year, and proposed 

an SCF that would provide insurance against a production failure during the peak 

production season (i.e. the beginning of the calendar year). The Agency’s proposed SCF 

is actually equivalent to about 51% of the 5,355,946 kg authorized for U.S. critical uses 

in 2008, or roughly a six-month supply if demand were constant throughout the year. 

Section V.D.2. of the preamble to the final rule explains EPA’s justification for this SCF 

size, as opposed to the one-year supply that the commenters requested. 

Comment: 

 Four commenters stated that the SCF should be a one year supply because of (1) 

the global ramifications that the supply disruption from the U.S.’s one plant would have 

and (2) concerns about the ability of the Israeli plant to divert methyl bromide to the U.S., 

especially in light of the conflicts occurring in the Middle East. [OAR-2006-1016-0135, 

0136, 0143, 0146] 

Our Response: 

EPA agrees that a supply disruption in the U.S. could have important global 

ramifications. The Agency considered international factors in its SCF analysis, which is 

described in the TSD. For example, after close scrutiny, EPA estimated that foreign 

production capacity is capable of meeting global demands for all methyl bromide. EPA 

also found that, given the conservative assumptions of the production failure scenario, 

existing shipping containers would be sufficient to maintain the global distribution 

system for methyl bromide. Therefore, based on the assumptions described in the TSD, 

EPA estimates that the proposed SCF would be large enough to mitigate the global 

ramifications that the commenters raised for concern. 

 
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 Regarding the commenters’ second concern, EPA’s analysis, described in the 

TSD, found that based on previous production levels, and also considering current 

conditions, the Israeli production facility would be able to ramp-up production rapidly 

enough to provide significant amounts of methyl bromide to the U.S. in 15 weeks or less. 

EPA also estimates that existing container capacity would be sufficient to transport that 

methyl bromide to the U.S. and other destinations. The Agency’s analysis found that 

Israel would not be forced to divert methyl bromide from any previous customers in order 

to satisfy increased demand from North America following a U.S. production failure. 

 The TSD requires a determination about which contingencies to use as the basis 

for the analysis. Contingencies that are too speculative, such as a simultaneous U.S. and 

Israeli production failure, or whose effects cannot readily be quantified, were not 

included in the SCF analysis described in the TSD. However, EPA adopted a 

conservative approach in recognition that its analysis could not address all possible 

contingencies. EPA believes that its analysis addresses the commenters’ concerns and 

that therefore, the size of the SCF that EPA is finalizing for 2008 is sufficient to serve its 

stated purpose. 

Comment: 

 The North American Millers’ Association commented that the U.S. would not be 

sacrificing environmental goals by maintaining a one-year SCF because stockpiled 

methyl bromide that is not in use can do no harm to the environment. [OAR-2006-1016-

0143] 

Our Response: 

 EPA notes that using existing methyl bromide can displace the need for new 

production, with corresponding environmental benefits.

Comment: 

 Chemtura and MBIP requested that EPA ensure a one-year methyl bromide SCF 

that is capable of supporting all methyl bromide uses. The commenters contended that 

EPA’s technical analysis does not accurately estimate assumptions regarding the time 

required to import methyl bromide. The commenters stated that EPA should have 

considered QPS, feedstock, and Article V methyl bromide uses in addition to critical 

uses, which account for only 50 percent of U.S. methyl bromide use. The commenters 

also stated that importing the methyl bromide necessary to meet U.S. demand would take 

far longer than 15 weeks due to 1) an inflexible shipping system, 2) limited storage 

capacity and unavailability of ISO shipping containers, 3) inability to ramp up production 

in a short time period, 4) the need to receive government approval before a foreign 

producer may increase production. Finally, the commenters quoted the technical 

limitations discussed in EPA’s analysis and argued that these limitations render EPA’s 

final calculation invalid. [Document ID: OAR-2006-0147, 0149] 
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Our Response: 

 We do not believe that the technical limitations in our estimate, as described in 

the TSD, render the final SCF calculation invalid, or instead support a one-year supply 

chain factor. Our SCF determination is an estimate, and we think it is appropriate to be 

candid about the limitations of our calculations. To account for the uncertainties in our 

estimate, we are using the conservative end of our technical estimate. 

 

 EPA believes that methyl bromide for quarantine and pre-shipment (QPS), 

feedstock, and exempted Article 5 country (developing country) uses would not have to 

be supplied from pre-phaseout inventory after a supply disruption, because, as explained 

in the proposed rule, existing regulations allow manufacturers and distributors to manage 

inventories of methyl bromide designated for those purposes (72 FR 48968). 

 

 In response to the concerns regarding the flexibility of the shipping system, the 

possibility that methyl bromide distributors have not conducted emergency response 

planning does not invalidate the SCF estimate described in the TSD. The Agency 

carefully considered physical shipping constraints that dictate how rapidly methyl 

bromide distribution patterns can shift, including ISO container capacity, the length and 

timing of shipping routes, and the volume of methyl bromide that would be shipped 

internationally to maintain the global distribution system following a U.S. production 

failure. However, the TSD does not assume that distributors will need long periods of 

time to redesign their distribution patterns in order to respond. Since each shipping route 

takes weeks to complete, the Agency believes that industry would have ample planning 

time to re-route containers as necessary.

 

 In response to concerns regarding storage capacity and capacity of the existing 

ISO container fleet, EPA disagrees that the current fleet of ISO containers would be 

unable to maintain the global distribution system for methyl bromide within the 15-week 

period estimated by the Agency. The conclusions described in the TSD are based, in 

part, on a detailed analysis of the capacity of the existing ISO container fleet, and other 

shipping logistics. EPA can not reconcile the differences between the Agency’s estimate 

and MBIP’s estimate, because MBIP did not provide details about how it concluded that 

the existing fleet of containers would be inadequate. 

 

 Chemtura, on the other hand, submitted diagrams to support their claim that the 

existing ISO container fleet would be insufficient. In their public comments Chemtura 

stated, “To assist the Agency further in understanding the logistical challenges raised by a 

shut-down of U.S. production, Chemtura is submitting, as business-confidential exhibits, 

two diagrams showing its estimates of the current global distribution map, and how the 

distribution map would change if U.S. production were suddenly disrupted.” After close 

analysis, EPA found a number of points of disagreement with the assumptions in 

Chemtura’s confidential submission. In general, these disagreements are related to 

concerns that Chemtura raised in its public comments, which EPA addresses in the 

preamble for the final rule. For confidentiality reasons, the Agency is unable to elaborate 

on how Chemtura’s submission conflicts with the analysis explained in the TSD. The 
- 16 -

Agency closely analyzed Chemtura’s confidential submissions and did not find a specific 

reason therein to revise the TSD, or the size of the proposed SCF. EPA’s detailed 

response to Chemtura’s confidential comments has been placed on a confidential docket 

because it includes information claimed as confidential business information. 

 In response to concerns about time and approvals required to ramp-up foreign 

production, EPA built in a certain amount of time —starting from the time of disruption 

of the U.S. supply chain—for foreign producers to make arrangements and adjustments to 

their production schedules before they would need to ramp-up production. EPA’s 

analysis assumed that the first container carrying methyl bromide from Israel to the U.S. 

would leave Israel approximately 45 days after a hypothetical U.S. production failure. 

This would give Israel a number of weeks to produce or make available extra methyl 

bromide to ship to the U.S. EPA considers the ability of foreign producers to ramp-up 

production, including gaining access to raw materials and storage capacity, and estimates 

that this timeframe would be adequate. 

 Regarding governmental approval for extra production, foreign producers could 

increase production and exports to the United States without approval from the Parties to 

the Montreal Protocol, so long as U.S. entities holding CUA allowances are willing to 

expend their CUAs to import that material. The commenters did not provide specific 

information about other governmental approvals that may be necessary, or whether there 

are steps that foreign producers could take in advance as contingency measures that 

would alleviate these concerns. 

 In conclusion, EPA’s analysis, in combination with information provided from 

comments, finds that the SCF that the Agency is finalizing (2,717,051 kg) is sufficient to 

alleviate shortages in the scenario that EPA analyzed. The Agency is not persuaded that 

a one-year SCF, as the commenters requested, would be necessary. 

Comment: 

 Chemtura commented that the U.S. delegation requested a six month SCF from 

the Parties in September, thus acknowledging the need for a larger SCF than is now 

suggested. This commenter stated that EPA needs to acknowledge methyl bromide’s role 

as a tool in responding to catastrophic events such as widespread re-fumigation after a 

natural disaster. The commenter also stated that methyl bromide has security as well as 

economic importance. [OAR-2006-1016-0147] 

Our Response: 

 EPA acknowledges methyl bromide’s role in responding to the situations 

described by the commenter. Methyl bromide’s role in responding to such challenges is 

one of the reasons EPA proposed a SCF in its analysis of available stocks, and based its 

estimate of the SCF on conservative assumptions. EPA, though, disagrees with 

Chemtura’s characterization of the events at the September 2007 Meeting of the Parties 

(MOP), and with Chemtura's assertion that the events at the MOP contradict this 
- 17 -

rulemaking. A negotiating position does not constitute a factual basis for a rulemaking, 

or a specific policy or technical finding of the USG. Furthermore, as explained in the 

proposed rule (72 FR 48966), EPA's proposed SCF provides a technical basis for 

calculating available stocks that is consistent with the Montreal Protocol, and clearly 

within EPA's authority under Section 604(d)(6) of the Clean Air Act. 

Comment: 

 MBIP and Industrial Fumigant Company (IFC) commented that chloropicrin is 

premixed in “virtually the entire” U.S. inventory of existing stocks. The commenter 

stated that this is problematic for post-harvest, QPS, and feedstock methyl bromide users 

because these uses require pure methyl bromide. Therefore, an SCF comprising existing 

stocks would not be useful to these sectors. Additionally, regulations regarding the 

import, export, and labeling of chloropicrin could delay the import of methyl bromide to 

the U.S. following a supply disruption. [OAR-2006-1016-0133, 0149] 

Our Response: 

MBIP did not provide detailed information to support their claim about the 

prevalence of chloropicrin in the remaining pre-phaseout inventory, and EPA’s current 

reporting requirements do not request information about all of the characteristics, or 

composition, of that inventory. Just prior to publishing the proposed rule, the Agency 

received anecdotal information suggesting that a large percentage of the remaining 

inventory is mixed with chloropicrin, and therefore unsuitable for post-harvest uses. EPA 

has also heard conflicting reports stating that a substantial portion of the pre-phaseout 

inventory is pure methyl bromide. 

The Agency is currently considering options to obtain more information about the 

characteristics of the pre-phaseout inventory, including but not limited to, requesting 

information from holders of pre-phaseout inventory using its information-gathering 

authority under section 114 of the Clean Air Act. If the prevalence of chloropicrin in the 

pre-phaseout inventory becomes a serious problem for post-harvest critical users, and 

because the CUA amount in today’s final rule is less than the production amount 

authorized by the Parties, EPA may consider allowing the conversion of some CSAs to 

CUAs in appropriate circumstances. 

 The Agency also recognizes that if pre-phaseout inventories contain very small 

amounts of pure methyl bromide, then allowing for a larger supply buffer, or SCF, 

composed of that inventory would not remedy the commenters’ concerns. 

Comment: 

 Ameribrom and MBIP commented that the distribution system for methyl 

bromide in the U.S. is complex and expressed concern that imports would not reach all 

repackaging locations in the same timeframe. MBIP stated that 500,000 kilograms of 

methyl bromide must remain in the system (a minimum of 3,231 metric tons of pre-
- 18 -

phaseout stocks) to keep the domestic distribution system functional. [OAR-2006-1016-

0149, Hearing 2] 

Our Response: 

 EPA specifically accounted for this concern in the proposed SCF analysis. The 

SCF would replace lost production for 15 weeks until imports arrive. Assuming these 

imports are all shipped to the location where methyl bromide is currently produced in the 

U.S., imported methyl bromide could be expected to reach repackaging locations in the 

same amount of time as if there were no production failure. EPA recognizes that the 

timely distribution of pre-phaseout stocks after a domestic production failure would 

depend upon business decisions made by suppliers. However, the proposed SCF is large 

enough to give suppliers the opportunity to provide uninterrupted distribution in the 

analyzed scenario. 

Comment: 

 MBIP asserted that EPA’s assumption that all of the pre-2005 inventory of methyl 

bromide would be available for critical uses in the event of a production failure is 

inaccurate. The commenter stated that companies holding stocks are permitted to sell 

them for any use and that critical users that do not have contracts with inventory holders 

could have a difficult time obtaining methyl bromide from stocks. [OAR-2006-1016-

0149] 

Our Response: 

 The commenter is correct that EPA lets firms respond to market conditions, 

instead of requiring them to sell methyl bromide to critical users. In the December 24, 

2004, Framework Rule (69 FR 76989), EPA finalized a system that allows for market 

forces to dictate the distribution of pre-phaseout inventory to specific end-users. EPA 

chose this approach, at least in part, to promote market flexibility and efficiency. Based 

on EPA’s estimate that there are significant amounts (approximately 1,729 metric tons) 

of pre-phaseout inventory available for critical uses in 2008, the Agency expects that 

holders of pre-phaseout inventory will be able to expend the full amount of 2008 CSA 

allocations in order to satisfy the needs of critical users. 

Comment: 

 MBIP commented that EPA did not consider regulatory obstacles under FIFRA 

that may delay the availability of alternate supply. This commenter asserted that if 

production is shifted to another location, the source information, manufacturing process 

data, and labels for all affected products would have to be updated before the products 

could be imported or distributed in the U.S. [OAR-2006-1016-0149] 
- 19 -

Our Response: 

 Data about sales of critical use methyl bromide shows that imported methyl 

bromide is used in the U.S. This suggests that at least some foreign production practices, 

formulations and locations are registered with the USG. EPA does not obligate producers 

to register their products for all U.S. critical uses, but the Agency expects that firms will 

respond to market conditions, and undertake appropriate emergency response planning 

(e.g. seeking amendments to registrations to allow for alternative production 

processes/production locations in the event of a supply disruption). A firm’s decision 

about whether to register its product for critical uses is similar to business planning 

decisions under the established critical stock allowance policy noted above; in which 

EPA let firms respond to market conditions, instead of requiring them to sell methyl 

bromide to critical users (69 FR 52376). The Agency believes that the added 

transparency of the SCF approach will help companies respond to market conditions 

more rapidly and appropriately. 

Comment: 

 Dow commented that the SCF should be based on the actual 2008 methyl bromide 

demand (4,816,514 kg) as determined by the USG and as proposed in the rule rather than 

the amount approved by the Parties (5,355,946 kg). The commenter stated that a SCF 

calculated upon a methyl bromide volume that exceeds the critical need for 2008 renders 

the SCF value and basis for the calculation nonsensical. The commenter concluded that 

this simple recalculation would reduce overall new MB production demand in 2008 by 

more than 250,000 kg. [OAR-2006-1016-0150] 

Our Response: 

 It appears that the commenter’s figure for “actual methyl bromide demand” is 

derived by subtracting the proposed 539,432 kg carryover amount (72 FR 48969), from 

the 2008 critical use amount agreed to by the Parties (5,355,946 kg) in Decision 

XVIII/13. EPA reduces new production to account for carryover critical use material in 

order to prevent companies from building inventories of newly produced critical use 

methyl bromide. EPA reduces new production amounts to account for carry over, but in 

doing so the Agency is not reopening the issue of the overall amount of total critical 

need. EPA expects that critical users will satisfy the remainder of their critical needs by 

using the critical use methyl bromide that was unused in previous control periods. EPA 

only considers valid, for the purposes of determining the total critical need, those 

reductions that account for new information about the feasibility of alternatives. 

Accordingly, for the reasons explained in Section V.D.6. of the preamble to the final rule, 

EPA is reducing the total 2008 CUE by 27,769 kg to account for the increased uptake of 

sulfuryl fluoride and iodomethane. The Agency has re-calculated the SCF with a total 

2008 demand for critical uses of 5,338,256 kg. This adjustment reduces the SCF by 

14,161 kg. 

 To clarify, EPA proposed that the SCF should represent about 51% of the total 

critical need in 2008. In the proposed rule, the Agency assumed that the total critical 
- 20 -

need in 2008 would be 5,355,946 kg, as agreed to by the Parties in Decision XVIII/13. 

Therefore, EPA proposed an SCF of 2,731,211 kg (5,355,946 kg * 50.994% = 2,731,211 

kg). As explained in Section V.D.6. of this preamble, EPA now estimates that the total 

critical need in 2008 will be 27,769 kg less than the Parties authorized in Decision 

XVIII/13, because EPA is making further reductions to account for the uptake of sulfuryl 

fluoride for cocoa bean fumigation, and for the newly registered fumigant iodomethane. 

Therefore, in this final rule EPA estimates that the total critical need in 2008 will be 

5,328,177 kg. Accordingly, EPA now calculates an SCF of 2,717,051 kg (5,328,177 kg * 

50.944% = 2,717,051 kg). 

Comment: 

 Dow, FSS and NRDC objected to EPA’s proposal to create an SCF and stated that 

the methyl bromide in question should be used to reduce or eliminate the need for new 

production and import allocations for 2008. [OAR-2006-1016-0144, 0145, 152] 

Our Response: 

 The supply chain factor is intended to provide a transparent analytical tool that 

will foster greater understanding of the Agency’s process in determining CSA amounts. 

By including a supply chain factor in its calculation of available stocks, EPA is 

considering the drawdown of pre-phaseout inventory and allocating critical use amounts 

that reflect the size of the remaining pre-phaseout inventory. EPA expects pre-phaseout 

inventory to be used to “fill the distribution chain” and simultaneously provide some 

buffer in case of a major supply disruption. Given the small number of methyl bromide 

production facilities around the world, and the continued drawdown of pre-phaseout 

inventory, a major supply disruption is an important issue for Agency consideration. 

Comment: 

 FSS commented believes that the SCF will be equivalent to existing stockpiles 

and will be easy to get and use by those with restricted use pesticide licenses. The 

commenter stated that stockpiles or SCFs are counterproductive to the phase out of 

methyl bromide and offer disincentives to companies to invest in using alternatives. 

[OAR-2006-1016-0144] 

Our Response: 

 The commenter is correct that this supply buffer would be composed of methyl 

bromide produced before the January 1, 2005, phaseout. The commenter is also correct 

that non-critical users are not barred from purchasing the pre-phaseout stocks of methyl 

bromide. In the Final Framework Rule, EPA explained its rationale and authority for 

allowing non-critical users to access stocks (69 FR 76988). EPA is not revisiting that 

issue in this rulemaking. 

 
- 21 -

 The Agency does not believe that the fact that producers and distributors may sell 

stocks to non-critical users invalidates the proposed SCF, or EPA’s proposed estimation 

of the amount of available stocks in 2008. The commenter is speculating about what 

suppliers will do given the opportunity to maintain a buffer, which is something that has 

not yet been tested. Information on stock drawdown during 2008 will inform EPA’s 

future CUE rulemakings. 

 

 While EPA did not propose to require that distributors keep the SCF amount as a 

supply buffer for critical users, Section V.D.3. of the proposed rule laid out an approach 

in which the Agency would stop drawing down stocks faster than the minimum agreed by 

the Parties, if EPA determines that available stocks will be less than the SCF amount. By 

considering a SCF in its analysis of the amount of stocks that are available for critical 

uses, EPA is giving producers and distributors the opportunity to provide a reasonable 

supply buffer to satisfy critical needs.

Comment: 

 NRDC objected to the SCF because the commenter believes that (1) the Parties 

and Congress did not intend for EPA to designate stocks as “unavailable;” (2) there is not 

a basis for the assumed risk of catastrophic loss at the U.S. methyl bromide production 

plant, as no such even has ever occurred at this location; (3) the chance of such an event 

happening right after the first of the year is even less likely; (4) no chemical company 

keeps more than a two or three month supply of a chemical, yet the SCF is nearly a four 

month supply; (5) temporary adjustments at a manageable cost can be made by methyl 

bromide users in the event of a supply disruption, such as the use of alternatives or a shift 

in fumigation schedules; and (6) the Parties rejected the U.S. proposal to allow 

maintenance of a half-year supply chain reserve at the 19th Meeting of the Parties. [OAR2006-1016-0145] 

Our Response: 

 First, EPA did not propose to designate any amount of stocks, or any specific 

holdings, as “unavailable.” EPA proposed to recognize the amount of existing stocks that 

is available. As discussed above and in the proposed rule, in paragraph 4 of Decision 

XVIII/13, and similar Decisions, the Parties indicated that each individual Party has 

discretion to recognize the amount of existing stocks that are available for critical uses. 

Most recently, Table D of the Annex to Decision XIX/9 explicitly indicated that the 

United States should reduce authorized new production levels to account for the amount 

of available stocks. Thus, EPA’s proposed approach is consistent with the practice under 

the Montreal Protocol. It is also an appropriate exercise of the discretion granted by 

Congress under Section 604(d)(6) of the Clean Air Act. 

 

 Second, the methyl bromide industry is unlike many others because there is only 

one active production facility in the United States. EPA recognizes that a catastrophic 

loss is unlikely, but this does not obviate the need to plan for such a scenario. While EPA 

expects private entities to take prudent steps to protect themselves, EPA does not wish to 
- 22 -

render them incapable of maintaining a reasonable supply buffer. 

 

 Third, though unlikely that a disruption will occur at the beginning of the year, 

EPA adopted a conservative approach in recognition that its analysis can not address all 

possible contingencies. 

 

 Fourth, the commenter provides no evidence for its assertion that no chemical 

company keeps more than a two to three month supply of a chemical. As stated above, 

the methyl bromide industry is unusual because there is only one production facility in 

the United States, which is also the lone production facility in the Western Hemisphere. 

EPA proposed that the SCF for 2008 should be 2,731,211 kg, or roughly a six-month 

supply of critical use methyl bromide if demand were constant throughout the year. 

 

 Fifth, EPA agrees that depending on when a supply disruption occurs, it is 

possible that a limited number of entities might be able to delay scheduled fumigations. 

It is also possible that some non-critical users might need to access the pre-phaseout 

inventory for security or other emergency purposes. We do not know whether these 

effects would occur or to what extent they would offset each other. Such speculation 

does not change the validity of EPA’s proposal that 2,731,211 kg is a reasonable supply 

buffer for 2008. EPA disagrees with the commenter’s assertion that critical users could 

readily switch to alternatives following a supply disruption. By definition, and as 

confirmed by several rounds of expert review, entities that qualify for critical use methyl 

bromide do not have access to technically and economically feasible alternatives.

 

 Sixth, EPA disagrees with the assertion that the Parties at the Nineteenth MOP 

rejected a half-year supply chain reserve because the Parties neither adopted nor rejected 

the creation of such a reserve. Furthermore, as mentioned above, a negotiating position 

does not constitute a factual basis for a rulemaking, or a specific policy or technical 

finding of the USG. More information about the 2007 MOP is provided in the Report of 

the Nineteenth MOP, available on the docket for this action. 

Comment: 

 At the public hearing for this rulemaking Ameribrom commented that the SCF 

needs to be held by manufacturers and importers because distributors, who hold most of 

the current stocks, do not distribute the methyl bromide when it is needed. [Hearing2] 

Our Response: 

 The supply of pre-phaseout inventories to critical users is based upon private 

business decisions that the Agency does not control. However, EPA expects all holders of 

methyl bromide to respond to market conditions to distribute methyl bromide to users as 

needed. 
- 23 -

4. Comments Relating to Section V.D.4. PROPOSED TREATMENT 

OF CARRYOVER MATERIAL 

What We Proposed: 

 The comments in this section correspond to Section V.D.4. of the preamble to the 

proposed rule and address the proposed treatment of carryover critical use methyl 

bromide from 2006. EPA proposed to reduce the total amount of the 2008 CUE 

allocation by 539,433 to account for that carryover material. EPA also sought detailed 

comments on a petition submitted by Chemtura, and subsequently made available on the 

docket, that proposed several changes to EPA’s calculation and implementation of 

carryover amounts. 

Comments relating to this section 

Commenter Organization Document ID 

Pamela Peckman The Industrial Fumigant Company OAR-2006-1016-0133 

Daniel Botts Florida Fruit & Vegetable Association OAR-2006-1016-0134 

Edward Ruckert Crop Protection Coalition OAR-2006-1016-0135 

Steven Hensley USA Rice Federation OAR-2006-1016-0136 

David Doniger Natural Resources Defense Council OAR-2006-1016-0145 

Charles Franklin and Paul 

Gutterman Chemtura Corporation OAR-2006-1016-0147 

David Markert American Chemistry Council’s Methyl 

Bromide Industry Panel OAR-2006-1016-0149 

Jim McBriarty Ameribrom Inc. Hearing 2 

Comment: 

 

 IFC expressed dissatisfaction with the method by which carryover is calculated 

and supported alternative measures for assessing carryover. This commenter stated that 

increased transparency of the supply chain would allow EPA to better understand where 

reporting is incomplete and allow for production reductions (i.e. CUA reductions) to be 

more fairly assessed. [OAR-2006-1016-0133] 

Our Response: 

We respond to specific proposals to change the way carryover is calculated in the 

preamble to the final rule, and below in this document. The Agency agrees that increased 

transparency of the supply chain, through supplemental information collection, would 

probably help EPA obtain more definitive information about whether there is 

underreporting, and could allow EPA to respond more quickly to specific instances of 

potential underreporting. In early 2008 EPA intends to use its information gathering 

authority under section 114 of the Clean Air Act to ask all entities that sell critical use 

methyl bromide to report the names of all non-end user entities (i.e. producers, importers, 

distributors and third-party applicators) to which they sold critical use methyl bromide 

during the 2007 control period. Collecting the names of these entities would facilitate 
- 24 -

Agency follow-up with non-reporters, allowing collection of necessary information in a 

more targeted manner than collecting detailed information from all entities. 

Comment: 

 Ameribrom commented that a significant amount of methyl bromide reported as 

carryover was in fact sold to end users but not reported. The commenter stated that larger 

suppliers and distributors should be able to take more responsibility for reporting the 

critical sales of smaller distributors, because these smaller entities struggle to keep-up 

with their own paperwork. [Hearing2] 

Our Response: 

 The commenter did not provide specific, verifiable information to support the 

claim that 80 percent of the carry over is actually unreported sales. The Agency is 

concerned with the commenter’s statement that some small distributors are not reporting. 

EPA continues to educate stakeholders about critical use exemption reporting 

requirements through outreach programs. For example, EPA posts instructional material 

on its website, holds informational sessions about reporting at the annual Methyl 

Bromide Alternatives Outreach Conference, and provides staff contacts to assist with 

reporting requirements. Most recently, EPA provided a letter template to members of 

MBIP that explains the importance of full reporting, provides information about how to 

acquire official reporting forms, and a contact person to answer questions. EPA 

encouraged MBIP’s members to customize the letter and send it to all of their customers; 

especially entities that larger suppliers claim to know did not file a sales report. 

 

 The current recordkeeping and reporting system does not preclude larger 

distributors from working closely with smaller distributors in their distribution chains to 

ensure that the reporting requirements are fully and accurately discharged. In fact, EPA 

has encouraged more cooperation between regulated entities that would all benefit from 

full and accurate reporting. One example of this was a letter template, mentioned above, 

that EPA sent to members of MBIP to send to their customers. 

Comment: 

 MBIP commented that EPA should have been aware of the underreporting of 

critical use sales and that EPA’s data set for calculating the carryover set is deficient. 

The commenter claimed that information it received in response to its FOIA request of 

May 2007 clearly showed that some companies filed reports in 2005 and not in 2006. 

Nonetheless, MBIP stated, EPA has mistakenly assumed that 100 percent of the 

unreported sales of critical use methyl bromide are held in inventory. According to the 

commenter, an independent auditor found that approximately 20 methyl bromide 

suppliers failed to provide EPA with sales reports, which accounted for approximately 80 

percent of EPA’s calculated carryover. [OAR-2006-1016-0149] 
- 25 -

Our Response: 

 Though commenters have raised the issue of underreporting, they have not 

provided EPA with verifiable information that we can use to recalculate the proposed 

carryover amount. MBIP has not provided the results of its audit, or the names of the 

suppliers that it stated did not fulfill reporting obligations in 2006. As a result, EPA can 

not confirm the veracity of the commenter’s claims. Therefore, at this time and for 

purposes of this rulemaking, EPA is relying on the information that it has collected 

through the official reporting process. As explained further in the preamble of the final 

rule, the Agency is unwilling to revise its methodology for determining the previously 

calculated 2006 carry over amount, which was reported internationally on March 16, 

2007. EPA has taken a number of steps to work with MBIP and other stakeholders to 

encourage full reporting. Full reporting is in everyone’s interest, and the Agency will 

continue to work with industry with outreach and educational programs toward that end.

Comment: 

 Chemtura commented that Ameribrom acknowledged that the majority of the 

2008 carryover originated within Ameribrom’s supply chain in the form of unreported 

sales. The commenter stated that Ameribrom suggested that it had failed to reach users 

with portions of its 2006 allocation, citing an inability to move product through its supply 

chain during 2006. The commenter also stated that Ameribrom has suggested that 

distributors in its supply chain are “probably never going to be able to comply” with 

EPA’s reporting requirements. [OAR-2006-1016-0147]

Our Response:

 A careful reading of the transcript from the public hearing does not confirm 

Chemtura’s assertion that Ameribrom claimed that 80 percent of the 2006 carryover 

originated from Ameribrom’s supply chain. The commenter from Ameribrom said that 

he “ma[d]e a couple of calls around,” and found that, “of our 539 metric tons 

carryover...80 percent of it, approximately, was not reported as sold, even though it was 

sold.” When the commenter said “of our 539 metric tons carry over,” he was clearly not 

referring to carryover solely from his company, because the total carryover amount in the 

proposed rule was 539 metric tons. Therefore, EPA reads the commenter’s statement to 

mean that his understanding is that of the total carryover reported in the proposed rule, 80 

percent was the result of unreported sales. This is very similar to the comments 

submitted by MBIP, of which Ameribrom is a member, which also claimed that 80 

percent of the 2006 carry over was the result of unreported sales. The Agency suspects 

that the commenter from Ameribrom was restating results from MBIP’s audit. We 

respond to MBIP’s audit in the preamble to the final rule and in above in this document. 

 We are concerned by the notion that distributors of critical use methyl bromide 

are somehow unable to comply with EPA’s reporting requirements, as the commenter 

from Ameribrom suggested at the public hearing for this action. At every step in the 

development of the CUE program, EPA has complied with Paperwork Reduction Act 
- 26 -

(PRA) requirements, and designed the reporting requirements in a manner that minimizes 

the overall burden on respondents. We will continue our efforts to provide outreach and 

education to entities that may be struggling to meet the reporting requirements for this 

program. However, as mentioned above, the CUE program does not preclude larger 

suppliers from assisting smaller entities in meeting their requirements. This kind of 

cooperation is in everyone’s interest if it ensures full and accurate reporting. 

Furthermore, MBIP was consulted when the framework for the CUE program was 

established, and they were fully aware of, and had a chance to comment on, the reporting 

regime that was adopted. This is to say that they were aware of the key role that 

distributors would play in this reporting system. 

Comment: 

 Chemtura commented that EPA lacks authority to reduce the 2008 CUE amount 

based on carryover from a previous year. [OAR-2006-1016-0147] 

Our Response: 

In the December 23, 2004, Framework Rule (69 FR 76997), EPA announced its 

determination that it would not permit entities to build stocks of methyl bromide 

produced or imported after January 1, 2005, under the critical use exemption. We believe 

this is a reasonable policy approach for a need-based exemption to a phaseout. The 

carryover amounts reduce the amount that is needed from new production and stocks in a 

subsequent year. We also believe this approach is consistent with the Montreal Protocol, 

and an appropriate exercise of EPA’s authority under Section 604(d)(6) of the Clean Air 

Act.

4.1 The Petition Submitted By Chemtura Corporation 

Comment: 

 Six commenters supported Chemtura’s petition that proposes to strengthen the 

current accounting framework and recordkeeping process to prevent underreporting of 

methyl bromide use. These companies stated that the critical use material calculated as 

carryover for 2006 is actually unaccounted sales rather than inventory held at the end of 

the year. Chemtura’s petition requested that EPA: 

1. Use the best data available to calculate the carryover subtracted from the 

critical use production allocation to ensure that only actually carryover is 

counted; 

2. Apportion carryover penalties to hold accountable only the producer(s) 

responsible for the carryover originating in its supply chain; 

3. Rigorously enforce compliance with supplier reporting requirements; and 

4. Modify carryover penalties assessed to reflect actual responsibility for supplychain carryover. 
- 27 -

These requests were based on assertions that: 

1. EPA’s contention that “carryover increased while allocations and stocks have 

plummeted is not credible.” The commenters pointed to the reductions 

between the quantities of methyl bromide in original CUE applications and 

the EPA allocations, as well as declines in methyl bromide stocks, as proof 

that carryover is unlikely. 

2. “EPA’s reporting data is incomplete.” The commenters stated that an 

independent auditor found that approximately 20 end-use suppliers failed to 

provide EPA with sales-to-user reports, which accounted for approximately 

80% of EPA’s calculated carryover. 

3. “Cutting the CUE allocation is not a substitute for enforcement.” The 

commenters contended that EPA should not alter CUE allocations based on 

noncompliance in reporting, but rather increase reporting enforcement. 

4. “EPA must adjust its methodology for calculating carryover.” The 

commenters stated that EPA should use the best data available for calculating 

carryover. They asserted that this data is the quantities of methyl bromide 

that companies report as being held in inventory on the Sales to Critical 

Users forms. The calculations would thus be based on data from the 

suppliers. A conservative margin for error could be achieved by calculating 

the average carryover for all reported sales and applying the average to any 

remaining unreported volume. 

 The petition further stated that “EPA’s process for apportioning carryover 

penalties among producers is unfair and perpetuates poor stewardship.” This statement 

was supported by the following points: 

1. “Apportioning carryover penalties based on 1991 consumption share is 

arbitrary and capricious.” The commenters stated that critical use production 

allocation penalties due to carryover are distributed among the four U.S. 

methyl bromide producers based on their 1991 consumption baseline market 

shares. The commenters stated that an equal allocation of the penalties would 

be fairer and that using the 1991 data is now inconsistent with the available 

supply chain information and would maximize future distortions in the critical 

use market. 

2. “EPA can not ignore relevant data in making carryover decisions.” The 

commenters stated that the U.S. methyl bromide suppliers have documented 

the compliance of their supply chains and have provided this information to 

EPA. The information does not support using the 1991 baseline market shares 

for penalty allocation. 

3. “EPA has received ample notice of the flaws in the framework.” The 

commenters stated that EPA has received multiple past comments regarding 
- 28 -

the issues surrounding carryover calculation and should therefore be equipped 

to address the reporting and penalty apportioning issues in the final 2008 rule. 

4. “The opt-out system proposed [in the petition] provides an appropriate method 

for apportioning carryover penalties.” The commenters referred to an “optout” system previously provided to EPA that would allow producers to 

voluntarily submit supply chain data in exchange for EPA’s removal of the 

individual producer from the default penalty pool. [Document ID: OAR-2006-

1016-0134, 0135, 0136, 0145, 0147, 0149] 

Our Response: 

 We appreciate Chemtura’s thoughtful petition and the commenters that provided 

feedback on the proposals it presented. In general, the petition proposed a number of 

policies that would significantly increase reporting requirements, and thus 

administrative burden hours, for the respondent community and EPA. Generally 

speaking, we prefer to continue programs that facilitate full and accurate reporting 

under the current requirements at 40 CFR 82.3. This approach would not increase 

administrative burdens for entities that routinely file complete and accurate reporting. 

In order to focus and streamline our outreach and follow-up efforts, in early 2008 

EPA intends to use its information gathering authority under section 114 of the Clean 

Air Act to ask all entities that sell critical use methyl bromide to report the names of 

all non-end user entities (i.e. producers, importers, distributors and third-party 

applicators) to which they sold critical use methyl bromide during the 2007 control 

period. 

 For a complete discussion of Chemtura’s petition, see Section V.D.4. of the 

preamble to the final rule. 

4.2 Reporting Requirements to Calculate Carryover Amounts 

 

Comment: 

 NRDC commented that EPA should require the reporting of the names of 

distributors and third-party applicators to which they have sold any methyl bromide, 

including pre-2005 stocks, in order to get accurate data to track amounts sold for all 

purposes (including non-critical purposes). The commenter stated that the costs of such 

reporting would be minimal and would be justified by the benefits of better tracking of 

CAA and Protocol compliance. [OAR-2006-1016-0145] 

Our Response: 

In 2008 we will be renewing our recordkeeping and reporting requirements, as 

required by the PRA. As we move forward with that process we intend to give further 

consideration to the commenter’s suggestion that EPA collect the names of distributors 

and applicators that buy pre-phaseout inventory. However, because the Agency did not 
- 29 -

specifically seek comment on this additional requirement in the proposed rule, EPA 

would like to gather more input before deciding whether to implement the commenter’s 

proposal. 

Comment: 

 MBIP suggested two methods for calculating carryover: (1) as the sum of all 

critical use methyl bromide that companies report as being held in inventory, though this 

would not completely solve the underreporting issue, or (2) modify the reporting system 

in a manner that would allow it to identify non-reporting companies and the amount of 

critical use sales attributable to each non-reporting company. The second option could be 

achieved by requiring each entity in the supply chain—from the manufacturer to the 

company that sells to the end user—to file a report stating who that entity sold critical use 

material to and how much material it sold. This commenter additionally believes that any 

material that stays in the distribution system past the end of a control period should be 

considered part of the SCF rather than carryover, and that no carryover should be 

subtracted from CUEs in 2008 and beyond. [OAR-2006-1016-0149] 

Our Response: 

 We respond to the first suggestion, that EPA use an “inventory method” to 

calculate the carryover amount, in detail in the preamble of the final rule. 

 EPA does not agree that it should require information that would allow the 

Agency to quantify the amount of critical use sales attributable to each non-reporting 

company. Instead of imposing additional burden on entities that do report in order to 

obtain detailed information about non-reporters, a more straightforward and practical 

approach is to encourage full reporting. EPA, though, believes it would be beneficial to 

acquire the names of all distributors and third-party applicators with critical use 

exemption reporting requirements under 40 CFR 82.13. Collecting the names of these 

entities will facilitate Agency follow-up with non-reporters, and thus diminish any 

advantages of collecting more detailed information from all entities. Therefore, in early 

2008 EPA intends to use its information gathering authority under section 114 of the 

Clean Air Act to ask all entities that sell critical use methyl bromide to report the names 

of all non-end user entities (i.e. producers, importers, distributors and third-party 

applicators) to which they sold critical use methyl bromide during the 2007 control 

period.
- 30 -

5. Comments Relating to Section V.D.5. CRITICAL USE METHYL 

BROMIDE FOR RESEARCH PURPOSES 

What We Proposed: 

The comments in this section correspond to Section V.D.5. of preamble to the 

proposed rule, which discussed the treatment of critical use methyl bromide for research 

purposes. EPA proposed to “allow sale of 15,491 kg of existing stocks for research 

purposes in 2008 to account for the amount authorized for those purposes” (72 FR 

48970). In other words, EPA proposed to reduce the amount of allowable new 

production and import by 15,491 kg and to encourage researchers to purchase critical use 

methyl bromide from pre-phaseout inventory to meet their needs. 

Comments relating to this section 

Commenter Organization Document ID # 

David Markert American Chemistry Council’s Methyl 

Bromide Industry Panel (MBIP) OAR-2006-1016-0149 

Comment: 

 MBIP objected to EPA’s proposal to issue CSAs for sale of pre-phaseout stocks 

for exempted research purposes. The commenter stated that the stockpile is too low to 

warrant further drawdown for research purposes and that new production should be 

increased by 15,491 kilograms to account for research needs. [OAR-2006-1016-0149] 

Our Response: 

We do not agree that the remaining pre-phaseout inventory is too low to warrant 

its use for exempted research purposes. The Agency estimates that more than 1,700,000 

kg of pre-phaseout inventory is available for critical uses whereas EPA is allowing the 

sale of 15,491 kg of methyl bromide from existing stocks for research purposes, and 

adjusting new production accordingly. Decision XVII/9(7) “request[ed] Parties to 

endeavor to use stocks, where available, to meet any demand for methyl bromide for the 

purposes of research and development.” EPA believes pre-phaseout inventory is 

available in sufficient quantity to continue to encourage researchers to procure methyl 

bromide from inventory.
- 31 -

6. Comments Relating to Section V.D.6. METHYL BROMIDE 

ALTERNATIVES 

What We Proposed: 

The comments in this section correspond to Section V.D.6. of preamble to the 

proposed rule, which discussed the technical and economic feasibility of methyl bromide 

alternatives. In particular, EPA sought comment on whether the Agency should reduce 

allowable new production and import levels to account for new information about the 

feasibility of sulfuryl fluoride for post-harvest cocoa bean fumigations. In addition, EPA 

sought comments on whether the Agency should make any other reductions to account 

for the uptake of feasible alternatives. 

List of comments relating to Section V.D.6. 

Commenter Organization Document ID # 

Gene Harrington National Pest Management Association OAR-2006-1016-0137 

David Mueller Fumigation Service & Supply, Inc. OAR-2006-1016-0144 

David Doniger Natural Resources Defense Council OAR-2006-1016-0145 

Charles Hall Georgia Fruit and Vegetable Growers Assoc. OAR-2006-1016-0146 

Charles Franklin and Paul 

Gutterman Chemtura Corporation OAR-2006-1016-0147 

Suresh Prabhakaran Dow AgroSciences, LLC OAR-2006-1016-0150 

Bruce Houtman Dow AgroSciences, LLC OAR-2006-1016-0152 

Dan Haley Walnut, Prune, and Fig Industry Hearing 1

John Tipton Florida Farmer Hearing 3 

Lynn Gayle Virginia Tomato Farmer Hearing 5 

D.C. McClure West Coast Tomato Hearing 6 

Bryan Unruh American Farm Bureau Hearing 10 

6.1 Post-Harvest Alternatives 

Comment: 

 The National Pest Management Association (NPMA) commented that an 

Oklahoma State University study has shown that the cost of using sulfuryl fluoride to 

treat post-harvest cocoa is not substantially greater than the cost of using methyl bromide. 

However, the commenter stated that some transition time is needed for smaller 

companies in the industry to transition to sulfuryl fluoride. This transition time includes 

the completion of a manufacturer’s stewardship program as well as an education process 

with customers to receive their consent to a different treatment. Additionally, while most 

states in which cocoa is processed have a special 24(C) label to allow for higher 

Concentration and Time (CT) dosage allocations for use of sulfuryl fluoride on cocoa, 

New York has not obtained that label. Therefore, the commenter requested that at least 

75% of the 53.188 metric tones of critical use methyl bromide authorized by the Parties 

for cocoa fumigation be allocated for 2008. The commenter stated that its application to 

use critical use methyl bromide in 2009 for cocoa bean fumigations had been withdrawn, 

as the transition to sulfuryl fluoride should be complete by that time. [OAR-2006-1016-

0137] 
- 32 -

Our Response:

 The Agency appreciates NPMA for voluntarily coming forward to agree to a more 

rapid transition to methyl bromide alternatives for cocoa fumigation. With this final rule, 

EPA is approving 39,891 kg of critical use methyl bromide for this sector, or 75 percent 

of the amount agreed to by the Parties in Decision XVIIII/13. Therefore, EPA is 

reducing the total amount authorized for 2008 critical uses by 13,297 kg to account for 

increased uptake of sulfuryl fluoride for cocoa fumigation. EPA’s response to this 

comment is discussed further in Section V.D.6. of the preamble to the final rule. 

Comment: 

 A representative of the walnut, prune and fig industry commented that the 

numbers in 2008 NPRM incorrectly assume that ProFume is an alternative for methyl 

bromide for use with dried fruit and walnuts. The commenter stated that ProFume is not 

effective against eggs, resulting in the need for multiple applications and therefore 

significant cost. [Hearing1] 

Our Response:

The proposed allocation amounts in the NPRM for dried fruit and walnut 

fumigations were based on the 2008 U.S. CUN, and the Decision XVIII/13, which 

authorized 58,921 kg for fumigations of commodities such as walnuts and dried fruits. 

The 2008 CUN, and the 2006 Report of the MBTOC, which both assessed the efficacy of 

sulfuryl fluoride for commodity fumigations, considered the concerns that the commenter 

raised. In order to revise the proposed numbers for commodity fumigations, EPA would 

need new information about the critical need for that sector. 

Comment: 

 Three commenters stated that sulfuryl fluoride is a viable and affordable fumigant 

alternative for all post-harvest structural fumigations. These commenters stated that 

methyl bromide allocations for these applications should therefore be significantly 

reduced or eliminated. [OAR-2006-1016-0144, 0145, 0150] 

Our Response: 

The Agency believes that some efficacy and validation issues remain that need to 

be adequately addressed before sulfuryl fluoride can be fully adopted by the food 

processing industry. Sulfuryl fluoride fumigation integrates temperature (requires less 

product as temperature increases), dosages (choice of only post-embryonic stages or all 

life stages), and exposure time. Sulfuryl fluoride efficacy on insect eggs requires higher 

concentrations, except at optimal temperatures. Its use also requires extensive training of 

applicators to proficiently use the computerized fumigation guide. Although many flour 
- 33 -

and rice mills have indeed fumigated their facilities with sulfuryl fluoride in 2006, the 

food processing industry is still learning how to incorporate sulfuryl fluoride fumigation 

into its pest management strategies. We appreciate the commenters’ input, and we will 

continue to closely monitor developments in the post-harvest fumigation industry and 

adjust our transition rates for sulfuryl fluoride accordingly. 

Comment: 

 FSS commented that nearly 50% of the 220 flour mills in the U.S. are fumigated 

with sulfuryl fluoride. The commenter stated that the 15%-20% transition of new 

technology stated by EPA may apply to farm applications but believes that it is too low 

for structural applications. Additionally, the commenter noted that sulfuryl fluoride has 

proved successful even after multiple applications with no return to methyl bromide, and 

that fumigation failures can happen with all materials, including methyl bromide. [OAR2006-1016-0144] 

Our Response:

We appreciate this input and refer to the commenter to our response above. 

Comment: 

 NRDC requested that EPA reduce the proposed CUE amount for all structural 

uses by at least half for 2008 and eliminate exemptions for such uses in 2009. The 

commenter stated that CUEs for post-harvest cocoa uses in particular should be reduced. 

[OAR-2006-1016-0145] 

Our Response: 

 We appreciate this input, and refer to the commenter to our response above. 

Comment: 

 Dow commented that sulfuryl fluoride (ProFume) is registered in all 50 states as 

well as in key countries outside the U.S., and provides broad spectrum, all life stage pest 

control without depleting the ozone layer. The commenter states that ProFume is 

technically and economically viable as a methyl bromide alternative, and provides 19 

documents containing data to support this assertion. [OAR-2006-1016-0150] 

Our Response: 

We appreciate Dow’s continued efforts to develop and market methyl bromide 

alternatives, and its willingness to provide EPA with valuable data about the technical 

and economic viability of those alternatives. This is not the first time EPA has reviewed 
- 34 -

information very similar to the documents provided by the commenter. We refer the 

commenter to our response above, and to the most recent U.S. critical use nominations, 

available on EPA’s website at http://www.epa.gov/ozone/mbr/2009_nomination.html, 

which contain the USG’s most recent assessment of the feasibility of sulfuryl fluoride as 

a methyl bromide alternative. 

Comment: 

 One commenter expresses support for EPA’s proposal not to make further 

reductions in 2008 to account for the uptake of methyl bromide alternatives. The 

commenter notes that some fumigation companies need more time to transition to 

sulfuryl fluoride, including the purchase of new equipment and training in its use. 

Specifically, the commenter believes that allowing CUEs for cocoa in 2008 will enable a 

smoother transition to sulfuryl fluoride and would help to guarantee methyl bromide 

availability to guard against unforeseen problems with the transition. [OAR-2006-1016-

0149] 

Our Response: 

 Besides the issues regarding post-harvest cocoa fumigation, and the newly 

registered pre-plant fumigant iodomethane, EPA is not making any additional reductions 

in critical use allowances to account for the uptake of alternatives. Uptake of alternatives 

was already considered in the 2008 U.S. CUN, adopted by MBTOC, and reflected in the 

2008 CUE authorization amounts that EPA is finalizing with this action. However, for 

the reasons explained in Section V.D.6. of the preamble to the final rule, EPA is reducing 

the total 2008 CUE by 27,769 kg to account for the increased uptake of sulfuryl fluoride 

for cocoa bean fumigation. 

6.2 Pre-Plant Alternatives 

Comment: 

 One commenter notes that USDA and CSREES are funding research into 

alternatives for golf and turf purposes, but that EPA is not. [Hearing10] 

Our Response: 

 EPA’s primary role is to lead the assessment of methyl bromide alternatives, the 

development of annual U.S. critical use nominations, and to administer the critical use 

exemption. EPA often meets with researchers and developers of alternatives, and 

provides guidance about the critical use exemption. EPA also provides financial 

assistance to the annual Methyl Bromide Alternatives Outreach Conference, which brings 

together researchers and growers from around the world to share the latest findings from 

methyl bromide alternatives research. 
- 35 -

Comment: 

 NRDC commented notes that EPA recently approved the use of iodomethane for 

field uses, which will reduce the need for methyl bromide CUE allocations. The 

commenter stated that iodomethane is a drop-in substitute for methyl bromide and that 

while it is more costly per kilogram; less of it is require to achieve the same efficacy. 

The commenter also stated that while iodomethane poses direct toxicity issues, the 

toxicity issues associated with methyl bromide are worse. [OAR-2006-1016-0145] 

Our Response: 

After considering new information about iodomethane, EPA estimates that 11,578 

to 17,367 kg of methyl bromide will be replaced by iodomethane in 2008. As discussed 

in Section V.D.6. of the preamble to the final rule, EPA is taking the midpoint of this 

technical range and reducing the overall allocation of CUAs by 14,472 kg to account for 

the increased uptake of iodomethane. EPA’s technical estimate is described in a 

memorandum on the docket for this action. In its technical estimate, the Agency 

considered the best available information as of December 11, 2007, the last day that EPA 

could reasonably consider information for this rulemaking. As of December 11, 2007, 14 

states had registered iodomethane. If more states register after that date, EPA will 

consider that information in next year’s CUE allocation rulemaking. 

 EPA has information that suggests that in general iodomethane will be more 

expensive than methyl bromide on a per pound basis, but that application rates of 

iodomethane will be lower on a pound per acre basis. While it is difficult to estimate 

exactly how these factors will offset each other, the Agency expects that through 2008 

the overall cost of iodomethane for growers will remain higher than the overall cost of 

using methyl bromide. This notion is corroborated by the observation that of the 1,000 

acres eligible for experimental use permits granted as part of the registration process, 

only 200 acres, or 20% of the available area, actually used them, in part this limited 

uptake was due to economic feasibility. Given the limited time between registration 

decisions and publication of the final allocation for 2008, for this year EPA is using this 

20% uptake rate as a proxy for the share of “eligible’ acres where it will be economically 

feasible to use iodomethane to replace methyl bromide. In future years, EPA may 

conduct an economic feasibility assessment for iodomethane in a crop and regional 

specific manner taking into account pricing data from the most recent calendar year. 

 At this time, and for the purposes of this rulemaking, it would be inappropriate for 

EPA to comment on the relative toxicity of methyl bromide and iodomethane. EPA is 

currently re-assessing a group or soil fumigants, including methyl bromide and 

iodomethane. More information about that process is available at the following website, 

http://www.epa.gov/pesticides/reregistration/soil_fumigants/, or from the contact person 

for this action. 
- 36 -

Comment: 

 Four commenters stated that while significant research efforts into methyl 

bromide alternatives are underway, long term tests are needed to know if an alternative 

will hold up over a multiple-year period without any methyl bromide treatments. [0146, 

Hearing3, Hearing4, Hearing7] The Georgia Fruit and Vegetable Growers Association 

expressed concern about adverse economic and operational impacts of implementing 

these alternatives too quickly. [OAR-2006-1016-0146] 

Our Response: 

 

We recognize that agricultural pest pressures can build over multiple-year 

periods. The annual CUE process, which includes the submission of CUE applications, 

development of the nomination, and the CUE allocation rulemaking, provides EPA with 

many opportunities to adjust the CUE program to account for changes in the status or 

efficacy of alternatives. To track agricultural developments, including pest pressures and 

economic conditions, EPA often meets with stakeholders and works closely with USDA. 

Comment: 

 Chemtura requested that EPA assess the technical and economic feasibility of 

iodomethane for no fewer than two years before factoring its availability into future CUE 

decisions. The commenter stated that the controversial nature of the registration 

combined with the proximity of the registration timing to the end of the comment period 

on the CUE rule provide reason to delay considering this alternative when allocating 

CUEs. The commenter also stated that iodomethane is not yet registered in California 

because of safety questions and that there is anecdotal evidence of efficacy problems with 

the chemical. The commenter expressed the opinion that at least two growing seasons are 

necessary to review and assess viability. [OAR-2006-1016-0147] 

Our Response: 

 In the proposed rule EPA sought “information regarding changes to the 

registration or use of alternatives that may have transpired after the 2008 U.S. nomination 

was written.” The Agency stated that, “Such information has the potential to 

alter...EPA’s determination as to which uses and what amounts of methyl bromide 

qualify for the critical use exemption.” In this final rule, EPA is following through with 

that statement, and reducing pre-plant critical use amounts by 14,472 kg to account for 

new information about the uptake of iodomethane. EPA’s estimate of feasible 2008 

iodomethane uptake is described in a memorandum on the docket for this action. 

 We recognize the time constraints of our analysis, and may seek additional 

information in the future that will provide a more accurate and complete picture of the 

technical and economic feasibility of iodomethane. Based on this information, additional 

analysis may be performed to assess the potential for iodomethane to serve a viable 
- 37 -

alternative to methyl bromide for future critical use exemption nominations and 

allocations.

Comment: 

 

 Three tomato growers from Florida and Virginia commented that alternatives are 

not yet effective enough to replace methyl bromide. The commenters stated that without 

methyl bromide many farmers will be forced out of business. The commenters noted that 

new plastics are not yet useful and that impermeable films are non-recyclable, and that 

alternatives in production can reduce production by 15%-25%. The commenters also 

stated that alternatives can only be used if soil conditions are optimal (not too wet or dry) 

and often for only one or two crop cycles before methyl bromide is needed again. 

[Hearing3, Hearing5, Hearing6] 

Our Response: 

EPA appreciates the commenters’ input, and will continue to consider these 

concerns in future critical use nominations (CUNs). We refer the commenters to the 

2009 CUN chapter on tomatoes, available on the docket for this action, which found that 

there are alternatives such as 1,3-Dichloropropene (1,3-D), chloropicrin and metamsodium that are technically and economically feasible alternatives for southeastern 

tomato growers under certain conditions. 

Comment: 

 Dow provided extensive comments objecting to EPA’s assessment of the label 

restriction on 1,3-D product use near karst topographical features in Florida. The 

Agency’s assessment of those restrictions was part of the basis for the 2008 and 2009 

CUN for pre-plant critical uses in Florida. The commenter asserted that EPA’s karst 

impact assessment represents an unnecessarily simplified, regional assessment 

inappropriate to assess a site-specific restriction. The commenter asserted that EPA’s 

2007 assessment is not an accurate reflection of the current 1,3-D product label 

restrictions which specifies that a particular field is not impacted unless there is a karst 

surface feature within 100’ of the edge of that field, independent of the percentage of the 

surrounding area which may contain karst surface features. 

 The commenter referenced two field-level evaluations of occupied structures that 

have been conducted in rural and urban agricultural areas of Florida and Georgia. The 

commenter stated that EPA should use the methods in those studies as a surrogate for 

karst surface features. The commenter also stated that results of these analyses indicate 

that restrictions on product use associated with features (either occupied structures or 

karst surface features) at distances of ≤100’ can be expected to have an impact on 

agricultural ranging from 1% to 5.5% compared to the proposed impact of up to 93% that 

is assigned to the 1,3-D karst restriction in the 2007 U.S. assessment. The commenter 

also mentioned that additional information on this further characterization of the karst 

impact was presented to EPA by Dow at a meeting on July 25, 2007 and submitted that 
- 38 -

information as separate documents into the public docket associated with this rule. 

 Dow also stated that the 2007 USG assessment concluded that the soils restriction 

causes 23% to 100% of agricultural land in Florida to be unsuitable for 1,3-D uses due to 

the state-specific (“Special Local Need” registrations for 1,3-D products) soil 

requirements. The commenter stated that the USG included agricultural land (in Alachua, 

Gadsden, and Jackson counties) in their assessment that is not subject to the specific 

Florida soil restrictions. In addition, the commenter stated that the 2007 soils assessment 

relies on a simplified soil assessment that characterizes the percentage of soil areas, by 

county, which are non-suitable for 1,3-D applications. The county-specific percentage 

values are then used to determine the percentage of agricultural land within that county 

that is unsuitable for 1,3-D uses. The commenter asserted that this represents a significant 

overestimation of impact, in the commenter’s opinion, because non-agricultural land is 

considered into the assessment. The commenter said that a more refined assessment 

utilizing GIS and land-use data, provided by Dow AgroSciences in 2002, indicates that 

the southern Florida soil restriction has the potential to impact up to only 24.6% of 

agricultural land in the key south Florida counties. The commenter mentioned that this 

information was shared with EPA in 2002 and 2007 and is placed in separate documents 

into the public docket that is associated with this proposed rule. [OAR-2006-1016-0152] 

Our Response: 

EPA agrees with the commenter on one point: Three counties that the commenter 

states are not subject to the second “seepage irrigation” SLN restriction should be 

removed from this portion of the analysis done for the CUNs. These counties would be 

Alachua, Gadsden and Jackson counties. 

 Even completely removing these counties from our analysis of soil restrictions 

would remove only a relatively small amount of crop acreage. Our analysis only 

considered the strawberry crop in that county, a total of 22 acres harvested, and a total of 

2,513 acres of tomato in Gadsden and Jackson counties (out of a total of 43,790 acres 

harvested in the state). Crop acreage information is taken from Appendix B of the 2006 

CUN for tomatoes, eggplants, peppers, and strawberry fruit. 

Note, however, that these three counties are still affected by the ‘karst’ restriction on 1,3-

D (Telone ®)use. 

 EPA disagrees with other aspects of the commenter’s statements or finds those 

statements to be inadequately supported by information provided to the Agency. First, 

regarding the statements on the karst portion of our analysis: 

 Dow said that occupied structures can be used as a proxy for karst surface 

features, and that therefore analyses that examine the presence of occupied structures as a 

restriction to fumigant use are appropriate to use for estimates of the karst impact. 

However, this seems to presume that karst features will occur with a frequency and 

distribution similar to that of occupied structures in all agricultural counties of Florida. 

Unless Dow has data to support this presumption, information which they have not 
- 39 -

presented, we do not see how using occupied structures as a proxy for karst topological 

features is valid. Therefore, we believe that our methodology of using geological maps 

which identify “sensitive karst areas” is superior. Furthermore, according to the label 1,3-

D also cannot be applied within 100 feet of an occupied structure. This suggests that even 

EPA’s analysis underestimates areas affected by regulatory restrictions on 1,3-D, since it 

did not account for the additional prohibition near occupied structures. 

 Second, regarding Dow’s comments on the technical aspects of the Floridaspecific “seepage irrigation” portion of EPA’s soils analysis described: 

 EPA examined information supplied by Dow at its meeting with Agency staff in 

July 2007. EPA presumes that this is the information that Dow indicates was submitted in 

2002 and again in 2007. 

 In addition to the differences in methods for estimating the impact of the karst 

restriction that are discussed above, a major difference between the Dow analysis of 

seepage irrigation restrictions and the EPA analysis is that EPA’s analysis assumes that 

the agricultural land is distributed within the county in proportion to its overall 

percentage rather than looking at the specific location of agricultural land used in the 

production of row crops. 

 Dow is correct in stating that using the actual location of agricultural land would 

provide a refined estimate of potential Telone® use. However, this refinement would 

change the overall assessment very little. 

 Particularly in counties which are largely agricultural, the difference between the 

EPA and Dow estimates is very small. The fact that the estimates of karst-restricted areas 

must be overlaid on the areas affected by seepage irrigation restrictions reduces the 

differences still further. The county where the difference is the most pronounced is Palm 

Beach, a county where agricultural use makes up a relatively small proportion of land 

use. Palm Beach County is approximately the 5th most important tomato-producing 

county in Florida, producing 7-8% of the 2002 tomato crop (2002 is the most recent year 

for which such data were available and thus the year used for the analysis). Palm Beach 

County is not a significant producer of strawberries. Strawberries and tomatoes are the 

Florida crops for which the largest methyl bromide request is put forward in the critical 

use nominations. Thus, changing the estimate of the proportion of land in Palm beach 

County that is eligible to use Telone® will make very little difference to the overall 

assessment of the proportion of Florida cropland where Telone® can be used in place of 

methyl bromide. 

 EPA emphasizes that it is very interested in refining its estimates of the impact of 

soil related restrictions on 1,3 D use in Florida, and is open to working with Dow to do so 

for future methyl bromide CUE assessments. 
- 40 -

7. Comments Relating to Section V.E. the CRITERIA IN DECISIONS 

IX/6 and EX.I/4 

What We Proposed: 

The comments in this section correspond to Section V.E. of preamble to the 

proposed rule, which discussed the criteria in consensus Decisions IX/6 and Ex. I/4 of the 

Parties to the Montreal Protocol. In this section the Agency explained how its proposals 

are in accordance with the criteria in those Decisions. 

Comments relating to this section 

Commenter Organization Document ID 

David Doniger Natural Resources Defense Council OAR-2006-1016-0145 

Comment: 

NRDC expressed support for EPA’s decision to reduce the production/import 

authorization below the 18% of baseline maximum to 12.2%. However, the commenter 

stated that EPA should dedicate the entire pre-phaseout inventory to CUEs as set forth in 

Section 604(d)(6) of the Protocol for the following reasons: (1) Decision IX/6 of the 

Protocol allows production and import of critical use methyl bromide only after using up 

stocks; and (2) Neither the Parties nor Congress would support EPA’s designation of 

“unavailable” stocks that can be used by persons without CUEs, despite the Protocol’s 

use of the term “available stocks.” [OAR-2006-1016-0145] 

Our Response:

 In response to the commenter’s first concern, the Agency has responded to the 

first part of this comment in the Final Framework Rule (69 FR 76988), the Final 2007 

CUE Rule (71 FR 75400), and in response to NRDC’s late submission of supplemental 

comments on the Proposed 2007 CUE Rule. EPA also addresses this comment in Section 

V.E. of the preamble to the final rule. In this rulemaking, EPA is not revisiting the issue 

of whether Decision IX/6 obligates EPA to allocate the entirety of the remaining prephaseout inventory for CUEs before allowing new production. 

 In response to the commenter’s second concern, EPA did not propose to designate 

any amount of pre-phaseout inventory, or any specific holdings, as “unavailable.” EPA 

proposed to recognize the amount of existing stocks that is available. As discussed above 

and in the proposed rule, in paragraph 4 of Decision XVIII/13, and similar Decisions, the 

Parties indicated that each individual Party has discretion to recognize the amount of 

existing stocks that is available for critical uses. Most recently, Table D of the Annex to 

Decision XIX/9 explicitly indicates that for the 2009 control period the United States will 

reduce authorized new production levels to account for the amount of available stocks. 

Thus, EPA’s proposed approach is consistent with the practice under the Montreal 

Protocol. It is also an appropriate exercise of the discretion granted by Congress under 

Section 604(d)(6) of the Clean Air Act.
- 41 -

8. Comments Relating to Section V.F. EMISSIONS MINIMIZATION 

What We Proposed: 

The comments in this section correspond to Section V.F. of preamble to the 

proposed rule, which discussed the use of technologies that minimize emissions from the 

use of methyl bromide for critical uses. In particular, the preamble discussed EPA’s 

response to paragraph 8 of Decision XVIII/13, which states that Parties shall request 

critical users to employ emissions minimization technologies whenever technically and 

economically feasible. 

Comments relating to this section 

Commenter Organization Document ID # 

David Doniger Natural Resources Defense Council OAR-2006-1016-0145 

David Markert American Chemistry Council’s Methyl 

Bromide Industry Panel OAR-2006-1016-0149 

Rick Tomlinson California Strawberry Commission Hearing 4 

D.C. McClure West Coast Tomato Hearing 6 

Comment: 

 NRDC commented that the most effective way to achieve further emission 

minimization is to require the use of emission minimization techniques such as virtually 

impermeable films (VIF), barrier films, and deep shank injection. The commenter stated 

that these techniques offer the concurrent benefit of reducing the amount of methyl 

bromide needed for fumigations. [Document ID: OAR-2006-1016-0145] 

Our Response: 

 EPA encourages the use of emissions reduction techniques and agrees that 

utilizing these techniques can result in needing less methyl bromide for efficacious 

fumigations. As the supply of critical use methyl bromide is reduced, the Agency expects 

that use minimization techniques and thus emissions limitation techniques will be 

adopted. 

Comment: 

 MBIP commented that (1) applications for future CUEs submitted to EPA by 

growers and (2) the CUNs are good repositories of information on the current status of 

various emission minimization techniques. [OAR-2006-1016-0149] 

Our Response: 

EPA appreciates this comment and recommends users to review these sources for 

emission reduction practices. We also point-out that research presented at the annual 

MBAO Conference is also a strong source of information about emissions minimization 

technologies. 
- 42 -

Comment: 

 At the public hearing for this action, a representative of the California Strawberry 

Commission commented that EPA should create a regulatory incentive for emissions 

reduction. [Hearing4] 

Our Response: 

We believe that by restricting the supply of methyl bromide available for critical 

uses, the phaseout and the critical use exemption provide regulatory incentives for the 

adoption and diffusion of emissions reduction technology. This is because emissions 

minimization technologies, such as tarps, reduce the amount of methyl bromide needed 

per fumigation. To the extent that the phaseout increases the price of methyl bromide, it 

also provides an economic incentive for these technologies. 

Comment: 

 At the public hearing for this action, a representative of West Coast Tomato 

commented VIF keeps the methyl bromide applied in the soil longer so it is metabolized 

in the soil rather than escaping into the atmosphere. The commenter stated that methyl 

bromide that is used in this way should not be decreased since it is not reaching the 

ozone. [Hearing6] 

Our Response: 

 In compiling annual critical use nominations, the USGconsiders the feasibility of 

VIF, and other more permeable tarps, because the use of these technologies can reduce 

required dosage rates and the critical need for methyl bromide to treat certain crops. The 

commenter may be proposing a different type of exemption for methyl bromide use that 

does not result in emissions to the stratosphere, but this would require a change in the 

Montreal Protocol, which is outside the scope of the present rulemaking. Until EPA fully 

reviews the research that the commenter refers to, it would be inappropriate for the 

Agency to respond further.
- 43 -

9. Comments Relating to Section V.G. PROPOSED CRITICAL USE 

ALLOWANCE ALLOCATIONS 

What We Proposed: 

The comments in this section correspond to Section V.G. of preamble to the 

proposed rule, which proposed company-specific critical use allowance allocations 

(CUAs) for 2008. CUAs grant their holders the privilege of producing or importing 

critical use methyl bromide during the control period in question. EPA also discussed the 

allocation system established in the December 2004, Framework Rule (69 FR 76982). 

EPA did not propose to change the established allocation system which includes distinct 

caps for pre-plant and post-harvest uses. However, EPA did indicate that it would 

consider additional comment on the Agency’s existing allocation framework. 

Comments relating to this section 

Commenter Organization Document ID 

Daniel Botts Florida Fruit & Vegetable Association OAR-2006-1016-0134 

Gene Harrington National Pest Management Association OAR-2006-1016-0137 

David Markert American Chemistry Council’s Methyl 

Bromide Industry Panel OAR-2006-1016-0149 

Dan Haley Walnut, Prune, and Fig Industry Hearing 1

Rick Tomlinson California Strawberry Commission Hearing 4 

Comment: 

 NPMA and MBIP commented that the universal system is working well and 

stated that the concept of the pre-plant/post-harvest allocations is simple and easy for 

stakeholders to understand. The commenters also stated that the system has not disrupted 

the supply chain and has been easy for distributors to implement. The commenters 

discouraged the Agency from switching to a sector-by-sector allocation system. 

[Document ID: OAR-2006-1016-0137, 0149] 

Our Response: 

EPA determined in the final Framework Rule (69 FR 76989) that a lump-sum, or 

universal, allocation, modified to include distinct caps for pre-plant and post-harvest uses, 

was the most efficient and least burdensome approach that would achieve the desired 

environmental results, and that a sector-specific approach would pose significant 

administrative and practical difficulties. EPA appreciates these comments, and is 

maintaining the existing allocation system in the final rule. 

Comment: 

 The Florida Fruit and Vegetable Association (FFVA) and a representative of the 

Walnut, Fig and Prune Industry commented that the geographical distribution of methyl 

bromide has created shortfalls resulting in the inability of individual growers to access or 

afford material to fumigate their fields in accordance with their production schedules. 
- 44 -

FFVA stated that this was particularly noticeable during the 2005 and 2006 fall 

fumigation periods. [0134, Hearing1] 

Our Response:

EPA appreciates this input about regional and local critical use methyl bromide 

shortages. The current allocation system, which does not place distinct use caps on 

geographical regions, allows suppliers flexibility to determine how much critical use 

methyl bromide to sell in each geographic region. We think this remains the most 

desirable system because it is a simple approach that allows suppliers to respond to 

market signals and agricultural circumstances that may arise, such as shifting pestpressures across regions. We will continue to seek more information about the 

geographic distribution of critical use methyl bromide, and to consider options for 

addressing the issue of regional shortages. 

Comment: 

 At the public hearing for this action, a representative of the Walnut, Fig and Prune 

Industry commented that the universal system does not work well because of regional 

and local shortages, but believes that a sector-by-sector allocation system would be 

equally flawed due to insufficient allocations in certain sectors and unequal holding of 

pre-phaseout inventory. [Hearing1] 

Our Response: 

 In the Framework Rule EPA determined that a universal allocation system, 

modified to include distinct caps for pre-plant and post-harvest uses, was the most 

efficient and least burdensome approach that would achieve the desired environmental 

results, and that a sector-specific approach would pose significant administrative and 

practical difficulties. A summary of the options analysis conducted by EPA is available 

on the docket for this rulemaking. We have monitored the operation of this allocation 

system, and believe that the benefits of this system outweigh the concerns that have been 

raised about it. 

Comment: 

 At the public hearing for this action, the California Strawberry Commission 

(CSC) commented that EPA should explore a hybrid between a regional and a lump-sum 

allocation system. Specifically, the commenter suggested that EPA consider creating 

several large regional areas (such as the EPA regions) that combine all of the sectors 

within each region to create a regional lump-sum. The commenter further stated that the 

methyl bromide users who most frequently face difficulty obtaining methyl bromide are 

small, minority growers, making the harm caused by the allocation of methyl bromide 

disproportionately distributed. [Hearing 4] 
- 45 -

Our Response: 

 In the Framework Rule, EPA did not consider a regional allocation approach. 

EPA may consider and seek comment on such an approach in a future proposed CUE 

rule. It would be inappropriate for EPA to adopt such an approach in this rulemaking, as 

other interested parties have not had an opportunity to comment on it. 

 Our initial reaction to the commenter’s proposal for a geographic allocation 

system is that it would restrict the flexibility and efficiency of the current system. 

Placing geographic or other artificial restrictions on the operation of the market for 

critical use methyl bromide is likely to reduce the efficiency of the system, and create 

additional administrative burden for affected entities. Furthermore, we are not convinced 

at this time that geographic restrictions would alleviate the economic impacts on the 

small and minority growers to which the commenter refers. We will continue to seek 

more information about these issues, and to consider options for addressing them. 
- 46 -

10. Comments Relating to Section V.H. PROPOSED CRITICAL 

STOCK ALLOWANCE ALLOCATIONS AND TOTAL VOLUMES 

OF CRITICAL USE METHYL BROMIDE 

What We Proposed: 

The comments in this section correspond to Section V.H. of preamble to the 

proposed rule, which proposed to allocate 1,715,438 kg of critical stock allowances 

(CSAs), which give their holders the privilege of selling pre-phaseout inventory for 

critical uses. In this section EPA also invited CSA holders, on a voluntary basis, to 

permanently relinquish their allowances through written notification to EPA. 

List of comments relating to Section V.H. 

Commenter Organization Document ID # 

Pamela Peckman The Industrial Fumigant Company OAR-2006-1016-0133 

Edward Ruckert Crop Protection Coalition OAR-2006-1016-0135 

Steven Hensley USA Rice Federation OAR-2006-1016-0136 

James Bair North American Millers’ Association OAR-2006-1016-0143 

Charles Hall Georgia Fruit and Vegetable Growers Assoc. OAR-2006-1016-0146 

David Markert American Chemistry Council’s Methyl 

Bromide Industry Panel OAR-2006-1016-0149 

Jim McBriarty Ameribrom Inc. Hearing 2 

Rick Tomlinson California Strawberry Commission Hearing 4 

Comment: 

 At the public hearing for this action, Ameribrom and the CSC commented that 

private companies that own pre-phaseout methyl bromide inventory have no obligation to 

sell it. The commenters stated that stocks are not available when needed because 

distributors hold these stocks so that the price will rise. Therefore, the commenters 

asserted, some entities with critical needs are unable to get the methyl bromide they need. 

[Hearing2, Hearing4] 

Our Response: 

 EPA lets firms respond to market conditions, instead of requiring them to sell prephaseout inventory to critical users. In the December 24, 2004 Framework Rule (69 FR 

76989), EPA finalized a system that allows for market forces to operate in the 

distribution of inventory. EPA chose this approach, at least in part, to promote market 

flexibility and efficiency. Based on EPA’s estimate that there will be significant amounts 

(approximately 1,729 metric tons) of pre-phaseout inventory available for critical uses in 

2008, the Agency expects that holders of pre-phaseout inventory will be able to expend 

the full amount of 2008 CSA allocations in order to satisfy the needs of critical users. 
- 47 -

Comment: 

 Seven commenters expressed concern about the proposed level of critical stock 

allowances of methyl bromide for 2008. The commenters stated that the proposed 

increase in the amount of methyl bromide to come from pre-phaseout inventory is beyond 

the level authorized by the Parties in Decision XVIII/13 and that an adequate emergency 

stockpile must be maintained. [OAR-2006-1016-0133, 0135, 0136, 0143, 0146, 0149, 

Hearing4] 

Our Response: 

Section V.D. of the preamble to the proposed rule provided a complete discussion 

of EPA’s rationale for proposing to allow more methyl bromide to come from prephaseout inventory than the minimum levels agreed to by the Parties in Decision 

XVIII/13. Section V.D. of the preamble to the final rule addresses comments on this 

issue and provides EPA’s justification for issuing 1,729,689 kg of CSAs with this action. 

EPA believes its approach is consistent with the Montreal Protocol and an appropriate 

exercise of the Agency’s authority under Section 604(d)(6) of the Clean Air Act. 

 

 With regard to maintaining an “adequate emergency stockpile,” we refer the 

commenters to Section V.D.4.2. of the preamble to proposed rule, and Section V.D.2. of 

the preamble to the final rule, which explain the Agency’s use of a SCF to estimate the 

amount of pre-phaseout inventory available in 2008. By including the SCF in this 

estimate, the Agency is using a transparent analytical tool to determine allocation 

amounts that gives suppliers an opportunity to maintain an adequate supply buffer to 

respond to a severe supply disruption, such as a domestic production failure. 
- 48 -

11. Comments Relating to the Section V.I. STOCKS OF METHYL 

BROMIDE 

What We Proposed: 

 The comments in this section correspond to Section V.H. of preamble to the 

proposed rule, which discussed EPA’s treatment of the inventory of pre-phaseout methyl 

bromide. This section also discussed the confidentiality of aggregated data about the size 

of the remaining pre-phaseout inventory. 

Comments relating to this section 

Commenter Organization Document ID 

Daniel Botts Florida Fruit & Vegetable Association OAR-2006-1016-0134 

James Bair North American Millers’ Association OAR-2006-1016-0143 

David Markert American Chemistry Council’s Methyl 

Bromide Industry Panel OAR-2006-1016-0149 

11.1 Treatment of Stocks 

Comment: 

 Two commenters questioned EPA’s understanding of stocks. At the public 

hearing for this action, a representative of the American Farm Bureau (AFB) commented 

that EPA does not know how to measure existing stocks, where the stocks are held, or 

how the stocks exist. [Hearing11] The North American Millers Association (NAMA) 

stated that the mechanisms for reporting stocks and usage are imprecise, and therefore the 

Agency’s calculations of stock levels are likely inaccurate. [OAR-2006-1016-0143] 

Our Response: 

Through the record keeping and reporting requirements at 40 CFR 82.13, EPA 

annually collects company-specific information about the amount of remaining prephaseout inventory. EPA has collected that information for each year starting with 2003. 

Aggregate inventory data, which is available on the docket for this action, shows a fairly 

steady decline in the amount of pre-phaseout inventory at the beginning of each year. 

EPA is unaware of any specific reasons to question the accuracy of the data it has 

collected about the size of that inventory. It is correct that the Agency does not require 

information about where the inventory is held geographically. We do not believe it is 

necessary to collect that information, because suppliers are allowed great flexibility with 

regard to where they distribute their inventory holdings in order to respond to market 

forces. 

Comment: 

 The Florida Fruit and Vegetable Association commented that as existing stocks 

are depleted, companies with large CUEs will be disproportionately affected. The 

commenter stated that a timely and accurate accounting system for use during the control 
- 49 -

period for both new production and CSAs should be developed and should be available to 

CUE holders. This accounting system would be important as CSAs decrease and would 

allow the Agency flexibility to shift from CSA’s to new production during the control 

period if necessary. The commenter asserted that without this flexibility the Agency 

should authorize the total quantity approved for the 2008 control period as new 

production with the understanding that the portion of material not used as a result of the 

use of pre-existing stocks during 2008 would be deducted from future authorizations as 

the current practice for unused new production authorized as CUAs. [OAR-2006-1016-

0134] 

Our Response: 

If EPA understands correctly, the commenter is concerned that at some point 

existing stocks will not be able to satisfy all of the CSAs issued by EPA for a given 

control period, and that if this happens during a control period, EPA should convert CSAs 

to CUAs. We believe that the proposed approach for determining CUA and CSA 

amounts, which accounts for the amount of available stocks, is a major step towards 

decreasing the probability that EPA would issue more CSAs than existing stocks are able 

to satisfy in a given control period. Currently, EPA collects annual data about critical 

sales of new production and stocks. EPA agrees with the commenter that collecting this 

data more often, quarterly for example, could have certain benefits related to monitoring 

stockpile information. As the commenter stated, more timely data could help EPA more 

rapidly determine if it would be appropriate to allow the conversion of some CSAs to 

CUAs. However, by increasing the repetition of reporting, the commenter’s proposal 

would impose extra administrative burden upon the regulated community. Considering 

the approach that EPA is finalizing in this rule, which should decrease the likelihood of 

impractically large CSA allocations, we do not believe the benefits of the commenter’s 

proposal would justify the additional costs it would impose. 

11.2 Confidentiality of Aggregate Pre-Phaseout Inventory Data 

Comment: 

 MBIP commented that it does not object to EPA’s proposal to release aggregate 

stockpile data in future years without first notifying entities by letter. However, the 

commenter stated that it reserves the right to object in the future should the number of 

competitors in the industry dwindle to two or fewer in order to protect confidentiality. 

[Document ID: OAR-2006-1016-0149] 

Our Response: 

As long as there are a sufficient number of competitors in the industry, EPA will 

not treat the aggregate of methyl bromide stockpile data collected under the reporting 

requirements at 40 CFR 82.13 as confidential information and may release such data in 

the future without further notice. However, if the number of competitors in the industry 

were to dwindle appreciably, EPA would revisit the question of whether the aggregate is 
- 50 -

entitled to treatment as confidential information and would not release the aggregate 

without notice. 
- 51 -

12. Comments Relating to RULEMAKING AND THE REGULATORY 

PROCESS 

Comments relating to this section 

Commenter Organization Document ID # 

Gene Harrington National Pest Management Association OAR-2006-1016-0137 

Charles Franklin and Paul 

Gutterman Chemtura Corporation OAR-2006-1016-0147 

Dan Haley Walnut, Prune, and Fig Industry Hearing 1

Jim McBriarty Ameribrom Inc. Hearing 2 

Rick Tomlinson California Strawberry Commission Hearing 4 

Rebecca Adcock American Farm Bureau Hearing 11 

Comment: 

 NPMA suggested the use of a chart tracking the process from the allocation by the 

Parties to the allocation by the Agency. The commenter stated that the current process is 

confusing, and points to a technical correction in the 2006 CUE Allocation rule as an 

example. [OAR-2006-1016-0137] 

Our Response: 

Consistent with previous years, EPA has made its calculations available on the 

docket in a spreadsheet entitled Allowance Allocation Calculation for Proposed 2008 

CUE Rule (Document ID: OAR-2006-1016-0105). In addition, to enhance the 

transparency of this rulemaking, EPA is including an extra spreadsheet on the docket that 

compares the allocation amounts proposed in the NPRM with the amounts that EPA is 

allocating in the final rule, and provides an itemized breakout of each reduction taken as 

compared to the Parties’ authorization in Decision XVIII/13 (Insert Document ID). 

Comment: 

 NPMA and Chemtura commented that the Agency should be more transparent in 

the CUE allocation process and explain in detail how each allocation reduction is made. 

[OAR-2006-1016-0137, 0147] 

Our Response: 

We appreciate this comment, as we strive to make these CUE rulemakings as 

transparent as possible. To enhance the transparency of this year’s rulemaking EPA is 

placing an extra spreadsheet on the docket which compares the allocation amounts 

proposed in the NPRM with the amounts that EPA is allocating in the final rule. 

Comment: 

 At the public hearing for this action a representative of the Walnut, Prune, and Fig 

Industry commented that the CUE process is an exemption to the Montreal Protocol that 
- 52 -

does not have quantity or time limits. The commenter stated that methyl bromide needs 

in certain sectors increase and decrease based on crop success each year and objects to 

the continuous decrease of methyl bromide allocated. [Hearing1] 

Our Response:

 

The commenter is correct that Article 2H(5) of the Montreal Protocol authorizing 

the Critical Use Exemption to the phaseout of methyl bromide does not have quantity or 

time limits written into it. However, the Parties stated in Decision XV/54 and reiterated 

it again in Decision Ex.I/3 that “exemptions must fully comply with decision IX/6, and 

are intended to be limited, temporary derogations from the phase-out of methyl bromide.” 

Decision Ex.I/3 further stated that “each Party should aim at significantly and 

progressively decreasing its production and consumption of methyl bromide for critical 

uses with the intention of completely phasing out methyl bromide as soon as technically 

and economically feasible alternatives are available.” EPA continues to work with 

USDA and the U.S. State Department to nominate and negotiate for critical use methyl 

bromide where no technically and economically feasible alternatives exist. 

Comment: 

 At the public hearing for this action, Ameribrom commented that when the CUE 

approvals come in “late in the season” obtaining and distributing the full amount is 

difficult. The commenter also stated that the rulemaking framework assumes that 

everybody involved has access to the Federal Register and knows what reports to file and 

how to file them. The commenter asserted that this is not the case for many small 

distributors. [Hearing 2] 

Our Response: 

EPA recognizes that critical use allowances allocated for 2008 can only be 

expended in the 2008 calendar year and that stakeholders have a need to produce and 

distribute their methyl bromide promptly. EPA endeavors to allocate CUE methyl 

bromide as expeditiously as possible while ensuring adequate time for stakeholders to 

provide comments. 

 EPA recognizes the need to educate stakeholders, including small distributors, to 

ensure full compliance with the recordkeeping and reporting requirements of the rule. In 

collaboration with major methyl bromide producers and distributors, the reporting forms 

were updated, simplified, and posted on EPA’s website in 2006. EPA included 

instructional materials with the updated forms, and held compliance assistance meetings 

to teach stakeholders how to use the new forms, including sessions at the Methyl 

Bromide Alternatives Outreach conferences in 2006 and 2007. Most recently, EPA 

provided a letter template to members of MBIP that explains the importance of full 

reporting, provides information about how to acquire official reporting forms, and a 

contact person to answer questions. EPA encouraged MBIP’s members to customize the 

letter and send it to all of their customers. 
- 53 -

 The current recordkeeping and reporting system does not preclude larger 

distributors from working closely with smaller distributors in their distribution chains to 

ensure that the reporting requirements are fully and accurately discharged. In fact, EPA 

has encouraged more cooperation between regulated entities that would all benefit from 

full and accurate reporting. One example of this was a letter template, mentioned above, 

that EPA sent to members of MBIP to send to their customers. 

Comment: 

 At the public hearing for this action, CSC commented that the California 

Department of Pesticide Regulation is currently issuing a VOC regulation that could 

restrict all fumigants, therefore affecting methyl bromide and its alternatives. [Hearing4] 

Our Response: 

 EPA’s 2008 CUE rule does not preempt other federal, state, or local laws or 

regulations governing actions including, but not limited to, the sale, distribution, transfer, 

and use of methyl bromide. If such a rule is enacted by the State of California, EPA will 

study the impacts, and may adjust the CUE program as appropriate with a notice and 

comment rulemaking. 

Comment: 

 At the public hearing for this action, ABF commented that the international 

process is “fatally flawed, both in the scientific review and the transparency and in 

fairness,” and that these flaws filter down to the EPA. The commenter further stated that, 

at the international level, EPA should focus on safe handling of fruit and vegetable 

imports rather than on methyl bromide reduction. [Hearing11] 

Our Response: 

EPA supports the CUE process to allow continued methyl bromide production to 

satisfy critical needs beyond the phaseout agreed to under the Montreal Protocol. We 

appreciate the commenters’ concerns about the international process. We will continue 

to work with our colleagues at USDA and especially the U.S. Department of State to 

maintain scientific integrity, transparency and fairness in the international 

implementation of the Montreal Protocol. 
- 54 -

Appendix. Commenters at the Public Hearing for This Rulemaking 

Commenter Organization Document ID 

Hearing Transcript OAR-2006-1016-0127 

Dan Haley Walnut, Prune, and Fig Industry Hearing 1

Jim McBriarty Ameribrom Inc. Hearing 2 

John Tipton Florida Farmer Hearing 3 

Rick Tomlinson California Strawberry Commission Hearing 4 

Lynn Gayle Virginia Tomato Grower Hearing 5 

D.C. McClure West Coast Tomato Hearing 6 

Shawn Crocker Florida Strawberry Growers Association Hearing 7 

Joel Jackson Florida Golf Course Superintendents 

Association Hearing 8 

Reggie Brown Florida Tomato Exchange Hearing 9 

Bryan Unruh University of Florida Hearing 10 

Rebecca Adcock American Farm Bureau Hearing 11