RESPONSE TO PUBLIC COMMENTS FOR 

THE NOTICE OF PROPOSED RULEMAKING:

THE 2009 CRITICAL USE EXEMPTION FROM THE PHASEOUT 

OF METHYL BROMIDE

1. COMMENTS ON RULEMAKING PROCESS................................................................................ 1

2. COMMENTS ON PROPOSED LIST OF CRITICAL USES............................................................. 2

3. COMMENTS ON PROPOSED TOTALS OF EXEMPTED NEW PRODUCTION AND IMPORT ........ 2

4. COMMENTS ON THE AMOUNT TO BE SOLD FROM PRE-PHASEOUT INVENTORY ................. 5

5. COMMENTS ON THE SUPPLY CHAIN FACTOR........................................................................ 9

6. COMMENTS ON METHODS OF ESTIMATING DRAWDOWN................................................... 10

7. COMMENTS ON TREATMENT OF CARRY-OVER AMOUNTS................................................. 11

8. COMMENTS ON AMOUNTS FOR RESEARCH PURPOSES........................................................ 11

9. COMMENTS ON ALTERNATIVES TO METHYL BROMIDE ..................................................... 12

9.A SULFURYL FLUORIDE..................................................................................................... 12 

9.B MARKET STATUS OF IODOMETHANE.............................................................................. 15 

9.C MARKET AVAILABILITY OF TELONE .............................................................................. 16 

9.D OTHER COMMENTS ON THE TRANSITION TO ALTERNATIVES: ........................................ 17 

10. COMMENTS ON EMISSIONS MINIMIZATION ........................................................................ 17

11. COMMENTS ON ALLOCATION METHODOLOGY................................................................... 18
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

1 

1. Comments on Rulemaking Process 

Commenter Organization Document ID No 

Methyl Bromide 

Industry Panel 

American Chemistry Council 0055 

Reginald Brown Crop Protection Coalition 0064 

• Support for Quick Rulemaking: The Methyl Bromide Industry Panel (MBIP) commented 

that EPA should move as quickly as possible to promulgate the final rule, for planning 

purposes. They noted that they appreciate the “no action assurance.” [0055] 

EPA recognizes the importance for the methyl bromide producer, distributor, and user 

community to have critical use allocations and critical uses established before the control period 

begins. 

Recognizing that it was unable to issue a final allocation by the end of 2008, the Agency stated 

through a “no-action assurance letter” it will exercise its enforcement discretion to allow 

companies identified in the proposed rule as holders of critical use allowances or critical stock 

allowances for 2009, to produce or import critical use methyl bromide for the specified critical 

uses proposed for 2009 until May 1, 2009 or until the final rule is published, whichever is 

sooner, in amounts not to exceed the allowance allocations identified in the proposed rule. 

• Rulemaking Should Be Based on Sound Science: The Crop Protection Coalition 

commented that any action regulating fumigants should be “based on sound science and 

reliable information.” [0064] 

EPA agrees that regulatory actions should be based on sound science and reliable information. 

Each methyl bromide request is evaluated by EPA scientists to determine whether: 

1. there are alternatives that are technically feasible that can be used in the production of the crop

(and are not banned by other regulations) 

2. these alternatives are economically feasible, and 

3. failure to get access to methyl bromide will result in a significant market disruption. 

Based on the findings of Agency scientists and economists, EPA decides which nominations to 

put forth and how much to request. 

During the evaluation and deliberation, the latest journal articles and study findings are 

consulted. EPA scientists also work closely with researchers and other experts to ensure full 

understanding of the circumstances of the nomination and the issues involved in transitioning to 

alternatives. The result is a US request that is based on sound science and reliable information. 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

2 

2. Comments on Proposed List of Critical Uses 

Commenter Organization Document ID No 

Reginald Brown Crop Protection Coalition 0064 

Gene Harrington National Pest Management Association 0065 

• Support for the Uses Exempted: The Crop Protection Coalition noted that they find the list 

of uses to be appropriate. [0064] 

EPA is not changing any of the proposed critical uses in the final rule, except to adjust some of 

the limiting critical conditions in response to comments received. 

• Wording Change Requested for NPMA: The National Pest Management Association 

(NPMA) requested that the language describing NPMA in Column B of Appendix L be 

changed to “Members of the National Pest Management Association treating processed food, 

cheese, dried milk, herbs and spices, and spaces and equipment in associated processing and 

storage facilities.” [0065] 

EPA agrees with NPMA’s revised description except for the inclusion of dried milk, which has 

not been approved as a critical use by the Parties to the Protocol. The final rule will reflect 

NPMA’s suggestion with the exception of the term “dried milk.” 

3. Comments on Proposed Totals of Exempted New Production 

and Import 

Commenter Organization Document ID No 

B. Sachau Citizen of Florham Park, NJ 0001 

Marcy Martin California Grape & Tree Fruit League 0061 

Reginald Brown Crop Protection Coalition 0064 

Daniel Botts Florida Fruit & Vegetable Association 0066 

Dan Hale California Strawberry Commission Public Hearing 1 

Jamie Consuegra Natural Resources Defense Council 0068 

• Complete ban on methyl bromide. One commenter called for a complete ban of methyl 

bromide, citing its harmfulness. [0001]

EPA disagrees that methyl bromide should be completely banned. There are still uses for methyl 

bromide that have no technically and economically feasible alternatives available. 

To reiterate our commitment to addressing the environmental impact of methyl bromide, we are 

summarizing U.S. Government activities: 

• The Montreal Protocol required developed countries to end consumption of methyl 

bromide by 2005, except for uses that qualify either for a critical use exemption or for the 

quarantine and preshipment exemption. 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

3 

• The Clean Air Act directs EPA to issue regulations to implement the provisions of the 

Montreal Protocol in the United States. EPA’s regulatory framework ensures U.S. 

compliance with the phaseouts under the Montreal Protocol, including limitations on the 

production of methyl bromide except for exemptions such as the critical use exemption. 

These regulatory requirements are codified at Subpart A to Part 82 of Volume 40 of the 

Code of Federal Regulations (40 CFR Part 82, Subpart A). 

• The U.S. has consistently met its reduction milestones for methyl bromide, and through a 

partnership with the United States Department of Agriculture – Agricultural Research 

Service, EPA is continuing to make a substantial resource commitment to minimizing the 

use of this fumigant. Under the U.S. Department of Agriculture's Methyl Bromide 

Alternatives Program: 

http://www.ars.usda.gov/research/programs/programs.htm?np_code=308&docid=14368, 

agricultural and forestry leaders from private industry, academia, state, and Federal 

agencies have come together to develop viable alternatives to methyl bromide. This 

research program, which has spent over $200 million, has taken into account input from 

federal agencies as well as extensive private sector research and trial demonstrations of 

alternatives to assess the problem, formulate priorities, and implement state-of-the-art 

research. 

• The downward trend in amounts of pre-phaseout inventory shows that the inventory held 

by companies in the U.S. is being managed effectively. 

EPA remains committed to finishing the job of restoring and protecting the ozone layer, 

protecting public health and meeting the critical needs of American farmers as they make the 

transition to methyl bromide alternatives. 

• The Natural Resources Defense Council stated that EPA should allocate less than the 

amount requested by CUE applicants. [0068] 

As a result of the detailed review of applications by U.S. experts, the U.S. typically nominates 

critical uses in amounts less than those requested by applicants. Additionally, since 2006, EPA 

has allocated critical use allowances in amounts lower than the amounts authorized by the Parties 

to the Montreal Protocol. We have found it invaluable to credibly demonstrate to the Parties that 

the U.S. submits a robust annual nomination and that we are committed to reducing our reliance 

on methyl bromide. 

• Five commenters stated that the level of exempted new production and import for critical 

uses was too low. 

- The California Grape & Tree Fruit League commented that the proposed levels of new 

production and imports are not “reflective of the nomination” and do not “account for the 

sum total of all requested needs.” The commenter stated that the reductions outpace the 

development of alternatives, and feel this is an “unfair action against the agricultural 

industry.” The commenter requested a more detailed explanation regarding the 

implementation of the transition prior to final rulemaking. The commenter also stated that 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

4 

crop plantings can “fail within two years of planting” as a result of infestation or disease, 

and pest management tools are key elements in preventing such failure. [0061] 

- The Crop Protection Coalition commented that the Critical Use Exemptions for 2009, as 

authorized by the Parties, are the “bare minimum amount necessary to meet the needs of 

the participants.” The commenter stated that EPA should adopt the amounts approved by 

the Parties to Montreal Protocol, without further reductions. [0064] 

- The Florida Fruit & Vegetable Association (FFVA) expressed their concern that the 

amount proposed for Critical Use Exemptions was too low, and will limit the amount 

available to Florida growers. The commenter stated that FFVA members are susceptible 

to geographical and distributional constraints of the allocation process, and that in 

previous years, growers with legitimate needs for CUE materials have been told that none 

was available. The commenter also noted that growers have been told that formulations 

and quantities will be limited in this season due to scarcity of CUE materials. The 

commenter concluded that FFVA’s critical use needs will not be met by the reduced 

production and consumption levels in proposed rule. [0066] 

- The California Strawberry Commission commented that the Parties to the Montreal 

Protocol could have specified a lower amount of new production, but they decided not to, 

based on the same information that EPA has considered for the allocation rule. The 

Commission stated that EPA should make small adjustments that will not result in 

“market disruption” rather than making a “dramatic reinterpretation of the data.” [Public 

Hearing 1] 

The maximum critical use amount, whether out of new production/import or out of existing (pre2005) stocks is determined by the Parties to the Protocol, generally but not always in accordance 

with the recommendations of the Methyl Bromide Technical Options Committee (MBTOC), the 

UN body with the responsibility for assessing the validity of the critical use exemption requests. 

Although the amount authorized by the Parties may not be the same as the amount requested or 

nominated, it is the maximum amount that the US will allocate. 

The Parties authorized new production of 3,962 metric tons of critical use methyl bromide for 

2009, while EPA’s proposed rule sought to allocate 1,618 metric tons of new production through 

critical use allowances. Since 2006, EPA has allocated critical use allowances in amounts lower 

than the amounts authorized by the Parties. 

EPA disagrees that the final 2009 allocation should be exactly what the Parties authorize, though 

the Agency does agree that the amount should be reflective of the nomination, when considered 

together with more recent information, such as updates on alternatives. The Parties to the 

Montreal Protocol authorized in Decision XIX/9 the equivalent of 16.7% of baseline for 2009 

critical uses. The final rule allocates 16.4% of baseline (with 7.5% coming from pre-phaseout 

inventory). Thus, the allocation is only .3% of baseline less than what the Parties authorized. In 

the previous two CUE rulemakings, this difference was closer to 2% of baseline. 

As described in more detail in the preamble of the final rule, EPA has the discretion to allocate 

less than the full authorization. EPA addressed this issue in past CUE preambles and response to 

comments documents. Since 2006, EPA has allocated critical use allowances in amounts lower 

than the amounts authorized by the Parties. 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

5 

Since methyl bromide production was phased out for developed countries in 2005, the U.S. has 

forwarded critical use exemption (CUE) requests to the Parties to ask for additional production. 

For sound reasons related to unique conditions of U.S. agriculture, the United States has been 

requesting CUE amounts larger than any other country. To support these requests, we have found 

it invaluable to demonstrate to the Parties that we are also committed to reducing our reliance on 

this chemical. That these efforts have been helpful is demonstrated by the fact that in every year 

that the U.S. has made a CUE request, the Parties have invariably approved approximately 90 

percent of the U.S. nomination. 

There are also sound domestic reasons for EPA to continue to allocate less than the total 

authorized amount of new production. First, U.S. distributors maintain an inventory of methyl 

bromide that was produced prior to the phaseout in 2005. As of December 31, 2008, this 

inventory was 4,271 metric tons – an amount that exceeds the entire 2009 amount authorized by 

the Parties. In authorizing the level of new production for 2009, the Parties stipulated that the 

authorized amount of new production and consumption be reduced by “available stocks.” Since 

the rule was proposed, EPA has received data showing that the pre-phaseout inventory is lower 

than EPA had projected, though a large amount still remains. This means that there is less 

available inventory than the Agency estimated in the proposal. As discussed in the preamble, 

EPA is authorizing more new production in the final rule to reflect this new information on the 

amount in inventory. 

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

use amounts to account for unsold 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 unsold in previous years is available for 

critical uses in subsequent years. Therefore, carry over amounts can offset the need for a certain 

amount of new production, import or supplies from pre-phaseout inventory. In this way EPA can 

also credibly assure the Parties that any amount they agree to allow for continued new 

production is in fact being used for uses defined as critical, rather than being added to amounts 

already in an existing inventory. 

4. Comments on the Amount to Be Sold from Pre-Phaseout

Inventory 

Commenter Organization Document ID No 

Methyl Bromide 

Industry Panel 

American Chemistry Council 0055 

Reginald Brown Crop Protection Coalition 0064 

Daniel Botts Florida Fruit & Vegetable Association 0066 

Dan Hale California Strawberry Commission Public Hearing 1 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

6 

• Two commenters commented that the amount of methyl bromide to be sold from prephaseout inventory was too high. 

- The Crop Protection Coalition (CPC) commented that EPA has incorrectly estimated the 

amount of pre-phaseout inventory available to CUE holders and has “grossly abused it 

[sic] discretion” in setting the CSA amount. CPC stated that the ruling on amount of 

previous stocks to be used in 2009 “utterly disregards all the previous work, effort, and 

information” by the U.S. government to gain approval by the Parties, and that that the 

amount to be drawn from previous stocks is a decision made on “administrative 

discretion” only. The commenter noted that registrants have new, more reliable 

information on existing stocks that is being provided to the Agency. CPC stated that it 

would be more appropriate for EPA to assume that no pre-phaseout inventory is available 

to CUE holders. [0064] 

For the final 2009 allocation rule, EPA used reported end-of-year data to calculate methyl 

bromide stocks. 

As background, prior to the phaseout date of January 1, 2005, it was legal to accumulate 

inventory of MeBr. While additional accumulation of inventory is not permitted under the CUE 

program, anyone –approved critical users or otherwise—can utilize inventories accumulated 

prior to the phaseout date. 

EPA recognizes that inventories are important to industry in the U.S., but in other countries 

inventories have not accumulated. The presence of inventories in the U.S. market has been a 

major factor in the international discussions to decide the amount of new production necessary to 

satisfy critical uses in the U.S. 

Although the yearly negotiations have been challenging, the U.S. has successfully reached 

agreement with other Parties, so that domestic agricultural sectors continue to receive CUE 

authorizations from the Parties to the Protocol. 

- The Methyl Bromide Industry Panel of the American Chemistry Council (MBIP) 

commented that the amount of CUE material to be drawn from pre-phaseout stocks for 2009 

is too high. MBIP requested that EPA set the stock amount at levels consistent with the 

percentage of baseline that was used in 2008 (6.8%), or at a minimum revise calculations to 

reflect actual inventory data and SCF inputs. 

MBIP stated that the amount from stocks is eight times higher than the level set by the 

Parties, and 50% higher than the level of CSA for last year. MBIP also stated that United 

States is not required to draw so much methyl bromide from stocks to fulfill its duly under 

the Montreal Protocol; the decisions of the Parties should be viewed as guidance and are not 

binding. In setting the CSA level, the commenter believes that the United States has “grossly 

abused” its discretion in allocating CSAs versus CUAs. The commenter asserted that the 

NPRM does not provide an explanation or justification for the dramatic increase in the CSA 

amount, violating administrative law. MBIP stated that in setting the CSA level the NPRM 

does not consider the impact on CUE users or non-CUE users, or the effect a drawdown of 

stocks could have on the United States’ ability to respond to catastrophic failure in domestic 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

7 

production of methyl bromide. MBIP commented that the following should be taken into 

account. 

• First, MBIP noted that stocks in the U.S. are already declining rapidly, and have 

decreased by almost 75% since 2003. Data collected by MBIP shows that 2008 

represented the highest percentage drawdown since 2004. 

• Second, MBIP commented that there is no indication in the NPRM or docket that 

EPA has considered the effect of the level of CSAs on the SCF in future years. 

According to the commenter, the proposed CSA level will jeopardize the United 

States’ ability to address a catastrophic disruption in the supply chain. The amount of 

stocks that would be left under the proposed rule would be “dangerously close” to 

EPA’s 55% target for the supply chain factor analysis. The Panel noted that the stocks 

left over would be below the amount approved for 2010 by the Parties to the Montreal 

Protocol. 

• Third, MBIP commented that the proposed rule mistakenly assumes that all stocks are 

available for CUE users. 

• Fourth, MBIP commented that that the lack of sufficient access to pre-phaseout 

stocks would set users’ needs against each other, potentially causing “significant 

supply and cost challenges” at a time of economic hardship. MBIP also noted a 

severe cutback in the production of Telone, which many growers were transitioning 

to. [0055] 

The 2009 CUE rule applies the same methodology as the 2008 CUE rule. Also, although the 

amount proposed to have been taken from inventory would have been an increase over previous 

years, the amount in the final rule is not. EPA is using the same methodology in the final rule: 

the only difference is that the rule uses actual reported data, and does not rely on statistical 

models to make a projection. 

EPA is aware that non-approved critical users are accessing pre-phaseout inventory. Decision 

Ex I/3 of the Montreal Protocol, which informs Agency actions on methyl bromide, does not 

require that individual Parties (such as the U.S.) prohibit the use of stocks by users whose uses 

fall outside the categories of agreed-upon critical uses. Nothing in the Protocol or the Clean Air 

Act mandates that EPA limit drawdown from inventory for such uses. EPA also recognizes that 

certain users may not have elected to apply for a CUE because they reasonably believed they 

could meet their transitional needs through inventory. Further detail on the issue of nonapproved critical users’ access to pre-phaseout inventory is available in previous CUE preambles 

and response to comments documents. EPA did not revisit the issue in the 2009 CUE 

rulemaking. 

In response to a comment on the proposed rule, EPA conducted a preliminary estimate show the 

demand in 2010. This estimate showed that between about 300 and 1,800 MT of pre-2005 

inventory methyl bromide could be needed in 2010 to meet demand not expected to be satisfied 

by imports during the time required to re-establish domestic production following a domestic 

production failure. This preliminary projection was developed using the same approach taken in 

the 2008 and 2009 rulemakings, and employed the amount of methyl bromide authorized for 

critical use in 2010 by the 20th Meeting of the Parties to the Montreal Protocol in order to project 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

8 

forward to 2010. This estimate is subject to change as other information becomes available, 

including finalized U.S. data on methyl bromide produced in the United States in 2008 (as 

submitted to the Ozone Secretariat under Article 7 of the Montreal Protocol). 

• Five commenters commented that pre-phaseout stocks are not dedicated to the use of CUE 

holders. 

- The Methyl Bromide Industry Panel of the American Chemistry Council (MBIP) 

commented that the proposed rule mistakenly assumes that all stocks are available for 

CUE users. According to the commenter, contracts and existing sales relationships 

between distributors and non-CUE users limits the amount of stocks that are actually 

available to CUE users. In addition, MBIP noted that pre-phaseout stocks are held by a 

very small number of distributors, who informed MBIP that they intend to sell at least 

some of their stock to non-CUE users. [0055]. 

- The Crop Protection Coalition (CPC) commented that most stocks are held at the 

dealer-distributor or service company level, and the amount of existing stocks varies from 

region to region. According to the commenter, stocks were not available to CUE holders 

in the southeast this fall. CPC also commented that EPA has no ability to control the 

disposition of existing stocks, and questioned EPA’s basis for assuming that stocks are 

restricted to CUE holders. CPC commented that the result of this “faulty logic” is 

penalizing CUE holders, and suggested that EPA focus on assisting the user community 

in the transition to alternatives. [0064] 

- The Florida Fruit & Vegetable Association (FFVA) commented that the Agency’s 

adjustment of the new production and import levels to account for pre-phaseout existing 

stocks is misplaced, since stocks are legally in control of “the distribution stream” and 

hence not dedicated to the critical use needs of growers. FFVA stated that much of those 

stocks will be directed to non-exempted uses. [0066] 

- The California Strawberry Commission cited that stocks are not readily available for 

CUE holders, as other users buy methyl bromide. The commenter noted that reports have 

indicated that non-CUE users are using methyl bromide stocks in California, and that 

California has experienced spot shortages in CUE commodities in 2008 as a result of 

geographical shortages. The commenter also noted that the amount of stocks is 

incorrectly estimated. [Public Hearing 1] 

Issues concerning supply of pre-phaseout inventory are addressed in the Response to Comment 

Document for the 2008 CUE Rule. Briefly, EPA regards this material as “available” because it 

is owned by someone other than the end user. While a distributor might prefer to sell methyl 

bromide to non-critical users to satisfy prior contracts or internal business decisions, this is not 

the result of any EPA regulatory constraint. EPA believes that the private market continues to 

determine effectively where methyl bromide inventory will be used. 

- The Natural Resources Defense Council suggested that the Agency prohibit the use of 

pre-phaseout stocks for purposes that are not critical uses. [0067] 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

9 

EPA does not currently require the sale of inventory to critical users. However, beginning in 

2010, distributors will be unable to sell to non-critical users due to labeling changes to methyl 

bromide. Under the Reregistration Eligibility Determination (RED) for methyl bromide soil 

fumigation uses issued in July 2008, uses already considered critical by the Parties have been 

considered eligible for re-registration, along with QPS uses. More information is available in the 

methyl bromide RED, available on the web at: 

http://www.epa.gov/oppsrrd1/REDs/methylbromide-red.pdf. 

5. Comments on the Supply Chain Factor 

Commenter Organization Document ID No 

Methyl Bromide 

Industry Panel 

American Chemistry Council 0055 

Reginald Brown Crop Protection Coalition 0064 

Jamie Consuerga Natural Resources Defense Council 0068 

• Higher Level of Stocks Needs to be Kept for Supply Chain Disruptions: The Methyl 

Bromide Industry Panel of the American Chemistry Council (MBIP) incorporated its 

comments on the 2008 CUE rule related to the calculation of the SCF by reference, and noted 

that the amount of stocks necessary for supply chain disruptions “should be equivalent to at 

least a one-year supply of material.” MBIP urged EPA to adjust its proposed SCF upward to 

ensure that sufficient stocks are maintained. [0055] 

• Estimation of Stocks Needed in Case of Production Failure is Flawed: The Crop Protection 

Coalition commented that the stocks needed in the event of a domestic production failure are 

incorrectly estimated in the proposed rulemaking, since only the actual entity holding the 

stocks can control the disposition of those stocks. [0064] 

The supply chain factor is the Agency’s estimate of the amount of existing methyl bromide 

stocks that would be sufficient to meet CUE uses if there were a domestic production failure. 

Under EPA’s regulatory framework, once the amount of existing stocks is less than the supply 

chain factor amount, EPA will allocate the full amount of new production authorized by the 

Parties, once other reductions (such as uptake of alternatives and adjustments for carry-over 

amounts) are taken into account. 

For 2009, EPA used the same assumptions for calculating the supply chain factor as it did for the 

2008 CUE rule. EPA assumes that imports will arrive 15 weeks after domestic production 

failure. 

This assumption is based on publicly available information, discussion with industry 

representatives, and data collected by the Agency. 

In the 2009 proposed rule, EPA did not re-open the issue of how many weeks’ supply the supply 

chain factor should represent. That issue was addressed in detail in the 2008 CUE preamble and 

accompanying technical document. Nor did EPA re-open the issue of whether to reserve stocks 

for critical users. Further discussion of that issue appears in previous CUE preambles and 

response to comment documents. 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

10 

Additional information on the SCF can be found in the Technical Support Document contained 

in the docket to this rule. 

• The Supply Chain Factor is Unnecessary: NRDC stated that the entire amount of pre-2005 

stocks should be allocated to critical use needs, reducing or eliminating the need for new 

production. [0068] 

The preamble of the final rule provides a detailed rationale for EPA’s application of the supply 

chain factor. The SCF provides an analytical mechanism that enables the Agency to calculate 

critical stock allowance amounts to allocate beyond the amounts stipulated by the Parties. 

6. Comments on Methods of Estimating Drawdown 

Commenter Organization Document ID No 

Methyl Bromide 

Industry Panel 

American Chemistry Council 0055 

W. Caffey Norman Patton Boggs, Attorneys at Law, 

Representing Arysta LifeScience 

0063, with 1 attachment 

Dan Hale California Strawberry Commission Public Hearing 1 

• Amount Designated to be Used from Pre-Phaseout Stocks is Based on Flawed Analysis: 

The Methyl Bromide Industry Panel (MBIP) commented that EPA’s formulaic approach to 

determining available stocks is flawed and does not provide flexibility needed to address 

changing circumstances. MBIP commented that EPA’s calculation of the drawdown should 

be revised to reflect actual inventory data. A survey conducted by MBIP found that prephaseout stocks were drawn down by an amount 44% higher than predicted by EPA’s new 

exponential model. MBIP commented that the exponential model is an improvement over the 

linear model, but is still flawed in assuming a constant drawdown rate, leading to “absurd” 

predictions over 10 and 20 year timeframes. According to MBIP, the primary flaw in the 

model is that it is not a true predictive model. MBIP stated that EPA should instead collect 

information on stock levels by December 1 of each year and use this information to adjust 

CUAs and CSAs in the final rule. [0055] 

• Price Increase in Methyl Bromide Will Impact Demand for Stocks: Arysta LifeScience 

noted the significant difference in the drawdown using the exponential versus linear method. 

The commenter stated that prices of methyl bromide have increased by 50% since 2004, and 

that iodomethane has become available since then, reducing the total overall demand for 

methyl bromide. [0063] 

• Assumptions on Drawdown are Flawed: The California Strawberry Commission 

commented that the EPA has falsely assumed the amount of stocks used in 2008. The 

commenter noted that reports from 18 new producers, distributors, and applicators could 

change assumptions. The Commission also pointed out that while EPA models the 

utilization rate of stocks as linear or exponential, another option is that the previous year’s 

use of stocks “simply reflects the unique market conditions of that year.” [Public Hearing 1] 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

11 

The formula for calculating available stocks is not a new approach: it was finalized in the 2008 

CUE Rule. Information on the development of that formula can be found in the proposed and 

final 2008 CUE Rules, as well as in the Technical Support Document for the 2008 control 

period, which is included in the docket for today’s action. 

The one difference from prior rules is that the Agency is able, in the final 2009 rule, to use actual 

data on the amount of 2008 pre-phaseout inventory instead of an estimate. EPA believes that 

using reported end-of-year data to calculate methyl bromide stocks in the 2009 final rule moots 

concerns about the accuracy of EPA’s estimate. 

Due to the timing of the 2009 final allocation rule, the Agency was able to use actual stock level 

data from 2008. 

7. Comments on Treatment of Carry-Over Amounts 

Commenter Organization Document ID No 

Methyl Bromide 

Industry Panel 

American Chemistry Council 0055 

Dan Hale California Strawberry Commission Public Hearing 1 

• Two commenters commented that the current reporting on carry-over amounts is 

inaccurate. 

- The Methyl Bromide Industry Panel of the American Chemistry Council (MBIP) 

commented that a “more accurate assessment” of the carry-over amount could be 

developed by surveying all companies holding inventory of methyl bromide. MBIP 

reiterated its suggestions for reporting reform. [0055] 

- The California Strawberry Commission commented that inaccurate reporting and new 

companies distributing methyl bromide result in overestimates of how much is being 

carried over. [Public Hearing 1] 

EPA responds to these concerns directly in section V.D.4 of the final rule preamble. EPA is 

continuing to calculate carryover in the manner described in the 2008 CUE rule, relying on sales 

information that is reported to us on a mandatory basis under the regulations. The Agency 

continues to welcome suggestions for improving reporting and for ensuring that regulated 

entities are aware of their reporting obligations. 

8. Comments on Amounts for Research Purposes 

Commenter Organization Document ID No 

Methyl Bromide 

Industry Panel 

American Chemistry Council 0055 

• Pre-Phaseout Stocks Should Not Be Used for Research: The Methyl Bromide Industry 

Panel of the American Chemistry Council (MBIP) commented that the pre-phaseout 

stockpile is at a “dangerously low level” and should not be drawn down for research 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

12 

purposes. MBIP stated that the new production level should be increased to account for any 

methyl bromide dedicated for research purposes. [0055] 

EPA believes pre-phaseout inventory is available in sufficient quantity to continue to encourage 

researchers to procure methyl bromide from inventory. 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 22,171 kg of methyl bromide from existing stocks for research purposes, and adjusting 

new production accordingly. 

9. Comments on Alternatives to Methyl Bromide 

Commenter Organization Document ID No 

Earl Hallberg Presto-X LLC 0046 

Kevin Pass Action Pest Control 0047 

Russell Martinez American Rice, Inc. 0048 

Sean Brantley Emory Brantley & Sons 0049 

R. Thadd Bigler Central States Enterprises 0050 

Rick Arnett Fume Tech, Inc. 0051 

John Mueller Fumigation Service & Supply, Inc. 0052

Bill Cohen Pest Fog Sales Corp. 0053 

Herbert C. Yeaman Degesch America, Inc. 0054 

Methyl Bromide 

Industry Panel 

American Chemistry Council 0055 

David Culp Dickson Chemical Co., Inc. 0056 

Justin Kremer Ecolab Inc. 0057 

Perry Nettles Food Protection Services 0058 

Management Staff Research Fumigation Company, LLC 0059 

Anne Bookout Royal Fumigation 0060 

Ellen Thoms Dow AgroSciences 0062 

W. Caffey Norman Patton Boggs, Attorneys at Law, 

Representing Arysta LifeScience 

0063, with 1 attachment 

Reginald Brown Crop Protection Coalition 0064 

Ellen Thoms Dow AgroSciences 0067, with 13 attachments 

9.A Sulfuryl Fluoride 

• Thirteen commenters indicated their support for sulfuryl fluoride, citing advantages such 

as ease-of-use, efficacy, safety, and reduced aeration times. Eight of those commenters 

stated that the cost of fumigating with sulfuryl fluoride was comparable to or less 

expensive than methyl bromide. 

- Action Pest Control commented that the use of ProFume® (sulfuryl fluoride) has allowed 

them to nearly eliminate the use of methyl bromide. The commenter stated that other 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

13 

advantages include that down time is reduced with use of ProFume, and that Dow’s 

ProFume Stewardship Program supports responsible use of fumigants. [0047] 

- American Rice, Inc. commented that ProFume (sulfuryl fluoride) has been a suitable 

alternative for all post-harvest product fumigation needs. The commenter stated that 

ProFume’s cost is competitive, and that ProFume is easy to use and aerate after use. 

[0048] 

- Emory Brantley & Sons commented that ProFume (sulfuryl fluoride) has proven 

effective, safe, ozone-friendly, and economical, and that the advantages of ProFume far 

outweigh those of methyl bromide. According to the commenter, ProFume has been used 

in a wide variety of applications, and its application has steadily increased annually. The 

commenter noted that the ProFume Stewardship Program requires training and testing, 

with ProFume representatives ensuring proper monitoring and safety during use. A 

software tool is used to make sure that the proper dosage and aeration times are being 

used, resulting in less fumigant released upon aeration when compared to methyl 

bromide. Fumigation with ProFume, the commenter noted, is often less expensive than 

methyl bromide “in fumigant cost, product downtime, site closure time, and 

labor/materials.” The commenter also noted that electronic monitoring of ProFume levels 

is also available, compared to the expensive, single-use colorimetric tubes used for 

monitoring methyl bromide. ProFume is also non-reactive with the product, noncorrosive, non-flammable, and has no impact on seed germination. [0049] 

- Central States Enterprises noted that ProFume (sulfuryl fluoride) has exceeded their 

customers’ expectations and has reduced aeration times, translating into cost savings for 

customers compared to methyl bromide. [0050] 

- Fume Tech, Inc. commented that ProFume (sulfuryl fluoride) has been “very costeffective” and is a “more effective and safe” alternative to methyl bromide. According to 

the commenter, some customers claim a better efficacy and lower cost compared to 

methyl bromide. The commenter also noted that ProFume has worked well in cases 

where insects have developed a phosphine resistance. [0051] 

- Pest Fog Sales Corp. noted that the calculating procedures and label for using ProFume, 

including the software, are much clearer than those for methyl bromide, and that Dow’s 

stewardship program is “the best in the industry.” The commenter also noted that 

fumigation with ProFume is quick and precise, and clears faster than methyl bromide. 

[0053]

- Ecolab Inc. commented that their use of ProFume (sulfuryl fluoride) for structural 

fumigation has been successful, noting the product’s advantages over methyl bromide: 

training and support by a Dow Chemical representative, controlled release, rapid aeration, 

and profitability. [0057] 

- Food Protection Services commented that ProFume’s quick set-up, excellent penetration, 

and rapid aeration has made it a successful fumigant for customers. The commenter 

stated that the stewardship training by Dow, the FumiguideTM software, and the 

comprehensive fumigation plans have often allowed for reduced use of fumigant. The 

commenter also noted that the economic impact of replacing methyl bromide with 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

14 

ProFume is related to eliminating unnecessary fumigations, and improvements that allow 

the most effective control measures to be implemented [0058] 

- Degesch America, Inc. indicated their support for the use of ProFume (sulfuryl fluoride), 

citing their customers’ “great satisfaction” with its results and the quality of the product 

stewardship program provided by Dow AgroSciences. [0054] 

- Dickson Chemical Co., Inc indicated their support for the use of ProFume (sulfuryl 

fluoride), citing their customers’ satisfaction with its results, in regards to application, 

pest control, and aeration timing. [0056] 

- Research Fumigation Company, LLC commented that as a result of using ProFume in 

mills and commodities, they have experienced good pest control, improved exposure and 

aeration times, and have been able to reduce their methyl bromide use. [0059] 

- Royal Fumigation commented that they successfully transitioned from methyl bromide to 

ProFume (sulfuryl fluoride), including for cocoa beans, by working with Dow 

AgroSciences. The commenter states that ProFume is an efficacious and economically 

feasible alternative to methyl bromide. [0060] 

- Dow AgroSciences LLC (Dow) commented that fumigator testimonials support the 

efficacy and economics of ProFume (sulfuryl fluoride). In particular, according to the 

commenter, the Fumiguide software allows for efficient and effective fumigation, tailored 

to the application at hand. [0062, 0067]

• Disadvantages of Fumigating with Sulfuryl Fluoride: Presto-X LLC noted that their 

experience with ProFume (sulfuryl fluoride) as an alternative has been positive, but that the 

cost is not competitive with methyl bromide due to the increased dosages needed to obtain 

efficacy comparable to methyl bromide. The commenter stated that another disadvantage is 

that ProFume is not approved for some food commodities and pet food ingredients. [0046]

EPA welcomes information from applicators and end users regarding their experiences using 

sulfuryl fluoride. This information demonstrates that many stakeholders in the post-harvest 

sector are moving away from methyl bromide and to this alternative. EPA does not believe, 

however, that the commenters have provided information that is sufficient to warrant 

modification of the rates EPA uses to estimate the adoption of this alternative in the marketplace. 

Except in situations where applicants have told EPA that they will be converting completely to 

sulfuryl fluoride use, EPA has assumed that the transition will occur over several years. 

The commenter is correct that sulfuryl fluoride is not approved for all post-harvest uses. 

When evaluating whether methyl bromide is needed, EPA looks not just at sulfuryl fluoride but 

all possible substitutes to determine if a substitute (be it another chemical or a practice such more 

frequent cleaning) is both technically and economically feasible and whether or not a significant 

market disruption will ensue if methyl bromide is unavailable. In situations where sulfuryl 

fluoride is not approved for use on the commodity, as in the case of pet food, the transition 

assessments developed by EPA scientists are not based on sulfuryl fluoride but on other 

alternatives. 

EPA has received a variety of information concerning both the price of both methyl bromide and 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

15 

sulfuryl fluoride. In some examples the price of SF is higher than the price of methyl bromide, 

in some cases it is lower. EPA has also observed that the price of methyl bromide has been 

increasing through time. It is important to note that the cost of the fumigant is a fraction of the 

cost of the fumigation. 

Except in situations where applicants have told EPA that they will be converting completely to 

sulfuryl fluoride use, EPA has assumed that the transition will occur over several years, with the 

transition occurring more rapidly where there is a cost advantage to using the alternatives.

• Issues Identified as Barriers to the Use of Sulfuryl Fluoride Have Been Resolved: Dow 

AgroSciences LLC (Dow) commented that issues reported in the 2009 CUE nominations as 

barriers to the adoption of ProFume (sulfuryl fluoride) as an alternative to methyl bromide 

have either since been resolved or demonstrated not to be barriers. Dow stated that the 

efficacy of ProFume in the field has been demonstrated in mill evaluations and for various 

commodities, including cocoa, dried fruits and tree nuts. Testing conditions include worstcase field circumstances. Dow noted that the suitability of ProFume for the cocoa and 

chocolate industry has allowed the industry to entirely replace methyl bromide with 

ProFume; an average of 22 cocoa fumigations are conducted daily with ProFume. Dow also 

commented that sales of ProFume have increased since 2004, and that no disruption to the 

food industry was observed in Europe associated with no methyl bromide used for postharvest fumigation in 2008. The fumigant is registered in all 50 states and in foreign 

countries. Dow attached thirteen supporting documents with updated data on ProFume’s 

efficacy, product use, and economics. [0062, 0067]

EPA appreciates technical supporting information, such as the information on limiting critical 

conditions. 

9.B Market Status of Iodomethane 

• MIDAS (Iodomethane Formulation) Is Widely Available, Widely Applicable, and Has 

Economic Advantages: Arysta LifeScience commented that MIDAS®, containing 

iodomethane, is a drop-in alternative for methyl bromide in 85% of soil applications, and is 

registered for use in 47 states. The commenter states that the amount of iodomethane 

estimated by EPA in its 2008 rule to replace methyl bromide (14,472 kg) represents 

approximately 300 acres treated; however, MIDAS® was used in its first year on more than 

7,000 acres. The commenter stated that iodomethane can be used easily, using the same 

equipment as methyl bromide, and can be used with films. According to the commenter, 

MIDAS® is also economically viable, as it can be applied at 20-30% lower rates per-acre 

than methyl bromide with no performance reduction. The commenter believes that at least 

650 MT of critical use methyl bromide will be replaced by MIDAS® in 2009, with use 

primarily in Florida, Georgia, and Virginia, and on strawberries, tomatoes, and peppers. The 

commenter attached several studies on the advantages of MIDAS® and its cost-effectiveness 

compared to methyl bromide to support their comment. [0063] 

Iodomethane is currently registered on food crops (peppers, tomatoes, strawberries) and nonfood nursery crops (ornamentals, forest seedlings, and strawberry nurseries). EPA has assumed 

uptake on only the food crops at this time. Although it is registered on non-food nursery crops, 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

16 

the Agency has not assumed any uptake for 2009. This is in keeping with the Agency’s policy of 

being protective of nursery crops until there is certainty that use of the newly registered 

alternative is efficacious on nematodes, diseases, and fungi and can meet any certification 

requirement. 

There are two major CUE food crops that do not have an iodomethane registration: curcurbits 

and eggplants. EPA did not estimate any uptake on those crops. For the crops and states where 

iodomethane is registered, EPA has estimated that an additional 15 percent of the critical use 

methyl bromide authorized by the Parties for 2009 can transition to iodomethane use. 

The Agency’s analysis, described in a memo on the docket for this action, estimates that 

iodomethane can feasibly replace 262,035 kg of methyl bromide in 2009. This analysis was 

conducted in the same manner as the analysis for the 2008 CUE rule. 

In estimating the amount of methyl bromide that will be replaced by iodomethane, EPA is not 

estimating overall market penetration for iodomethane. EPA expects that iodomethane will also 

penetrate markets occupied by fumigants other than methyl bromide. 

Nevertheless, because of information regarding the decreased production of Telone, EPA is not 

making any reductions for alternatives (such as iodomethane) in the final 2009 CUE rule. 

• Lack of Access to Iodomethane: The Methyl Bromide Industry Panel of the American 

Chemistry Council (MBIP) commented that iodomethane, an alternative fumigant, is not 

easily available to methyl bromide users. MBIP stated that the Proposed Rulemaking does 

not contain sufficient information on how the rule accounts for use of iodomethane to allow 

for meaningful comment. Because of this limited amount of information, MBIP stated that 

the rule does not satisfy the standard that an “agency notice must describe the range of 

alternatives being considered with reasonable specificity” and that, as a result, EPA cannot 

promulgate a final rule that “imposes anything but a de minimis reduction in the total level of 

critical use production and imports to account for the estimated uptake of iodomethane.” 

[0055] 

EPA calculated that iodomethane replaces methyl bromide by 15% for the crops and States 

where it is registered. Our calculations are contained in a background document to the docket 

for the rulemaking. 

. 

9.C Market Availability of Telone 

• Decreased Telone Supply: The Methyl Bromide Industry Panel (MBIP) commented that 

a predicted drop in the supply of Telone in 2009 would create additional pressure on prephaseout inventories of methyl bromide. [0055] 

• PA received information that Dow AgroSciences has reduced its production of 1,3 D 

(marketed as Telone) for the first half of 2009. Commenters believe that this shortage 

will place greater pressure on stockpiled methyl bromide as growers facing a shortage of 

Telone will be forced to rely on the pre-phaseout inventory. [0063] 

 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

17 

As discussed in detail in the preamble to the final rule, EPA received information projecting a 

shortage of Telone in the first half of 2009, some of which was confidential business 

information. EPA was not able to assess the exact impact and duration of a shortage of Telone 

but, based on information available to the Agency, ascertained that it was appropriate to reflect 

these projections in its calculation of new production, which includes information available 

about market penetration of alternatives. As described in the final rule, EPA addressed the likely 

shortage of Telone by restoring an amount of new methyl bromide production equivalent to the 

amount that would have been subtracted to reflect uptake of iodomethane. In effect, EPA did not 

make any adjustments to the amount of new production to reflect availability of alternatives. 

9.D Other Comments on the Transition to Alternatives: 

• Success in Using Several Alternatives: Fumigation Service & Supply, Inc. commented that 

their company has, over the course of six years, completely replaced methyl bromide 

applications with heat, phosphine, fogging, and ProFume. The commenter reported that costs 

and efficacy standards have been maintained while moving from methyl bromide to 

alternatives. Only two out of hundreds of customers still hold out for methyl bromide. 

[0052] 

• Difficult Transition to Alternatives: The Crop Protection Coalition commented that the 

process of transitioning to alternatives will likely be “much harder” and “much slower” as a 

result of EPA’s “fumigant RED process.” [0064] 

It is not clear from this comment exactly why EPA’s Reregistration Eligibility Decision (RED) is 

making the transition to methyl bromide alternatives harder and slower. Through the 

RED process, EPA is ensuring that all pesticides used on food in the United States meet the 

Federal Food, Drug, and Cosmetic Act’s safety standards. 

EPA is strongly committed to involving stakeholders and the public in reevaluating registered 

pesticides. The Agency's public participation process for pesticide tolerance reassessment and 

reregistration has provided a dynamic framework for public involvement and consultation during 

the conduct of these programs. Because pesticides do not all present the same degree of risk or 

complexity of issues, the public participation process provides options for conducting a full 6 

phase process, modified 4 phase process, or streamlined low risk process. Using this tailored 

approach, EPA promotes robust public involvement while making timely pesticide regulatory 

decisions. The significant risk reductions EPA has required as a result of this process has 

resulted in improved food safety and human health and environmental protection. 

10. Comments on Emissions Minimization 

Commenter Organization Document ID No 

Dan Hale California Strawberry Commission Public Hearing 1 

Jamie Consuegra Natural Resources Defense Council 0068 

• Recommendations for Reducing Emissions: The California Strawberry Commission 

provided several recommendations for further reducing emissions of methyl bromide. First, 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

18 

the Commission suggested that EPA implement a multi-year CUE and allocation rule to 

provide a more predictable market, or alternatively that EPA provide matching grant funds. 

Second, the commenter stated that EPA should encourage the use of formulations with a 

lower percentage content of methyl bromide and should reduce buffer zones for those 

formulas. Third, the Commission commented that EPA should regulate emissions of methyl 

bromide and not production. The Commission noted that the current rulemaking fails to 

reward “investment in new environmental technology.” [Public Hearing 1] 

The Montreal Protocol highlights the need for all parties to take steps to reduce emissions. The 

critical use process under the Protocol is also structured so that CUE requests are processed 

yearly. While the U.S. government has raised the issue of changing to multi-year CUEs (during 

international meetings), there has been very little support from other countries for making this 

change. Many of the countries expressed concern that providing a multi-year exemption would 

take away a needed incentive for producers of alternatives. 

Through sponsorship of the Methyl Bromide Alternatives Organization annual conference, EPA 

supports research and demonstration projects where formulations with a lower percentage 

content of methyl bromide are used. However, the Agency disagrees that lower percentages of 

methyl bromide use mean a concurrent reduction in buffer zones. 

Regarding the third comment, the regulatory structure established by EPA in response to the 

Montreal Protocol is based on production, not emissions. The Agency has not seen a compelling 

reason to change this structure. 

 

• The Natural Resources Defense Council suggested that EPA require emission 

minimization. [0068] 

Rather than mandate emission reduction techniques, EPA will continue to work with the U.S. 

Department of Agriculture – Agricultural Research Service (USDA-ARS) to promote the 

techniques on a voluntary basis. As discussed above, the federal government has invested 

substantial resources into best practices for methyl bromide use, including emission reduction 

practices. USDA-ARS has a national outreach effort to publicize the best practices. Also, EPA 

continues to work on the registration review of promising methyl bromide alternatives while 

USDA-ARS works closely with researchers and growers to identify and develop new pest 

treatment solutions. 

11. Comments on Allocation Methodology 

Commenter Organization Document ID No 

Methyl Bromide 

Industry Panel 

American Chemistry Council 0055 

• Support for Universal Allocation: The Methyl Bromide Industry Panel of the American 

Chemistry Council commented that they support the continued use of universal allocation 

approach. [0055] 
Summary of Comments on NPRM: The 2009 Critical Use Exemption from the Phaseout of Methyl Bromide 

19 

EPA agrees with this comment supporting the existing allocation system. EPA considered 

sector-specific and other allocation approaches in the proposed Framework Rule, and decided 

that the existing universal allocation system with pre-plant and post-harvest allowances was the 

most effective and least burdensome system. Rather than specify the amount of methyl bromide 

available to each crop/region, EPA divides the total CUE amount between the pre-plant and postharvest sectors. This allows market forces to help mediate where, for each sector, the methyl 

bromide will be used rather than the government dictating use on a state-by-state and crop-bycrop basis. EPA does not take any action to disadvantage a particular crop or region.