1
SUMMARY
OF
COMMENTS
FOR
METHYL
BROMIDE
CRITICAL
USE
EXEMPTION
RULE
1.
Summary
of
Comments
Relating
to
CRITICAL
NEED
...............................................
3
1.
a.
Total
amount
for
critical
uses
can
be
reduced
through
use
of
sulfuryl
floride
..
3
1.
b.
Total
amount
for
critical
uses
can
be
reduced
through
use
of
other
chemicals
4
1.
c.
No
need
for
exemptions
...................................................................................
9
1.
d.
Total
amount
is
insufficient
to
meet
critical
use
demand
...............................
12
1.
e.
Total
amount
should
include
amounts
pending
before
Parties
.......................
14
2.
Summary
of
Comments
Relating
to
AMOUNT
FROM
STOCKS
.............................
166
2.
a.
Legal
basis
to
control
stocks
.........................................................................
16
2.
b.
Factors
in
the
algorithm
...............................................................................
29
2.
c.
Disclosure
of
data
(
CBI)
...............................................................................
35
3.
Summary
of
Comments
Relating
to
ACCESS
TO
STOCKS
.......................................
39
3.
a.
Who
should
get
access
to
stocks
....................................................................
39
3.
b.
Legal
basis
                          
43
4.
Summary
of
Comments
Relating
to
CAP
ON
CRITICAL
USE
METHYL
BROMIDE
46
5.
Summary
of
Comments
Relating
to
CRITICAL
USE
ALLOWANCE
ALLOCATIONS
52
5.
a.
Baseline
for
critical
use
allowance
distribution
.............................................
52
5.
b.
Frequency
of
critical
use
allowance
distribution
...........................................
55
6.
Summary
of
Comments
Relating
to
CRITICAL
STOCK
ALLOWANCE
ALLOCATIONS
...........................................................................................................
57
7.
Summary
of
Comments
Relating
to
TRADING
ALLOWANCES
...............................
60
7.
a.
Trading
within
allowance
type
......................................................................
60
7.
b.
Trading
between
allowances
.........................................................................
63
8.
Summary
of
Comments
Relating
to
ACQUIRING
CRITICAL
USE
METHYL
BROMIDE
..................................................................................................................
64
9.
Summary
of
Comments
Relating
to
WHO
IS
AN
APPROVED
CRITICAL
USER
......
68
9.
a.
Uses
..............................................................................................................
68
9.
b.
Conditions
....................................................................................................
70
9.
c.
New
market
entrants
.....................................................................................
74
10.
Summary
of
Comments
Relating
to
REPORTING
AND
RECORDKEEPING
REQUIREMENTS
........................................................................................................
77
10.
a.
Reporting
.....................................................................................................
77
10.
b.
Record­
Keeping
...........................................................................................
79
10.
c.
Treatment
of
Unused
Critical
Use
Methyl
Bromide
......................................
80
11.
Summary
of
Comments
Relating
to
ENFORCEMENT
PROVISIONS
.....................
83
12.
Summary
of
Comments
Relating
to
DISTRIBUTION
OF
PERMITS
TO
APPROVED
CRITICAL
USERS
........................................................................................................
86
12.
a.
Allocation
of
Allowances
to
Producers/
Importers
Versus
End
Users
...........
86
12.
b.
Historic
Baseline
Approach
........................................................................
90
12.
c.
Auctions
.......................................................................................................
90
12.
d.
Redeemable
System
......................................................................................
93
2
13.
Summary
of
Comments
Relating
to
EPA
TREATMENT
OF
BASELINE
AND
INVENTORY
DATA
.....................................................................................................
93
14.
Summary
of
Comments
Relating
to
ECONOMICS
AND
THE
REGULATORY
IMPACT
STATEMENT
................................................................................................
93
15.
Summary
of
Comments
Relating
to
BURDEN
ASSOCIATED
WITH
THIS
REGULATORY
SYSTEM
..............................................................................................
94
16.
Summary
of
Comments
Relating
to
NEED
FOR
AN
EXPORT
MECHANISM
........
97
17.
Summary
of
Comments
Relating
to
the
RULEMAKING
AND
REGULATORY
PROCESS
..................................................................................................................
98
3
1.
Summary
of
Comments
Relating
to
CRITICAL
NEED
1.
a.
Total
amount
for
critical
uses
can
be
reduced
through
use
of
sulfuryl
fluoride
Commenter
Organization
Document
ID
Number
John
Mistretta
Riviana
Foods
Inc.
0207
John
Mueller
Fumigation
Service
&
Supply,
Inc.
0208
Tim
Maniscalo
Dow
AgroSciences
LLC
(
DAS))
0247
 
Three
sets
of
comments
suggest
that
the
total
amount
of
critical
use
methyl
bromide
could
be
reduced
through
the
use
of
sulfuryl
fluoride
(
ProFume
®
)
,
an
effective
methyl
bromide
replacement
for
post­
harvest
uses
[
0207,
0208,
0247].
One
of
these
comments
is
a
mass
letter
campaign
from
three
commenters.

 
One
commenter,
a
manufacturer
of
alternatives
to
methyl
bromide,
suggests
that
sulfuryl
fluoride
(
ProFume)
could
displace
around
386,000
kgs
of
critical
use
methyl
bromide
for
the
fumigation
of
mills
and
food
processing
facilities
in
2005
[
0247].
 
This
commenter
notes
that
ProFume
is
a
suitable
replacement
for
methyl
bromide
for
post­
harvest
uses.
Since
being
U.
S.
EPA
registered
for
mill
fumigations
in
January
2004,
it
is
claimed
that
ProFume
has
been
successfully
used
to
fumigate
approximately
40
cereal
grain
mills
across
the
U.
S.,
where
the
use
of
ProFume
has
resulted
in
an
average
8.9
percent
increase
in
the
overall
cost
of
fumigation
or
an
increase
of
less
than
$
0.0015
per
loaf
of
bread.
[
0247]

Response
#
1:
EPA
agrees
that
sulfuryl
fluoride
is
an
important
alternative
to
methyl
bromide.
The
overall
size
of
the
critical
use
exemption
has
already
been
adjusted
to
accommodate
some
market
uptake
in
2005.
EPA
looks
forward
to
receiving
additional
technical
and
economic
data
on
this
product
in
the
future
to
make
assessments
about
the
potential
for
market
displacement
in
future
nominations.
Fumigation
of
40
mills
is
a
considerable
step
forward
however
EPA
would
seek
further
information
such
as
the
number
of
mills
seeking
repeat
fumigations
with
Profume,
the
ability
of
Profume
to
control
insect
populations
over
prolonged
periods
of
use,
the
number
of
fumigators
licensed
to
handle
the
product
compared
to
the
number
of
mills
seeking
fumigations,
as
well
as
more
detailed
information
on
the
costs
of
this
alternative.
Please
see
response
#
2
for
more
detailed
response.
4
1.
b.
Total
amount
for
critical
uses
can
be
reduced
through
use
of
other
chemicals
Commenter
Organization
Document
ID
Number
David
Doniger
Natural
Resources
Defense
Council
(
NRDC)
0133,
0140­
DD
(
transcript
of
public
hearing),
0246,
0287
David
K.
Mueller
Pest
Managers
for
A
Better
Environment
0134
Ruth
Niwander
N/
A
0163
Amber
Standridge
N/
A
0164
Howard
Deutch
N/
A
0190
Taylor
Young
N/
A
0236
Dennis
Thomas
N/
A
0241
Tim
Maniscalo
Dow
AgroSciences,
LLC
0247
Jonathon
Slevin
Champon
Millennium
Chemicals,
Inc.
0122
 
Nine
commenters
are
of
the
opinion
that
the
proposed
cap
on
critical
use
methyl
bromide
for
the
US
for
2005
of
8,942
metric
tons
is
too
high
[
0122,
0133,
0134,
0140,
0163,
0164,
0190,
0236,
0241,
0246,
0247,0287].
 
One
commenter
asserts
that
"
it
is
technically
and
economically
feasible
in
2005
to
displace
approximately
40%
of
the
8.9
million
kgs
of
CUEs
for
MB
with
available
substitutes",
based
on
"
supporting
data,
available
studies
and
experience."
As
an
example,
this
commenter
suggests
that
1,3­
dichloropropene
(
1,3­
D)
(
Telone
®
)
could
displace
about
3,362,000
kgs
of
critical
use
methyl
bromide
for
pre­
plant
soil
fumigation
in
2005.
[
0247]
 
One
commenter
said
that
certain
critical
uses
such
as
golf
courses
lacked
"
criticality"
and
that
the
Agency
did
not
sufficiently
consider
organic
agriculture
as
an
alternative.
[
0287]

Response
#
2:
The
commenter
stated
in
their
comments
that
their
products,
1,3­
dichloropropene
(
1,3­
D)
and
sulfuryl
fluoride
(
SF)
can
displace
a
significant
portion
of
the
critical
use
market,
40%
of
the
authorized
amount,
but
they
recognize
that
from
a
practical
transition
perspective,
such
reductions
will
not
easily
happen
in
the
next
year.
The
commenter
provided
a
table
indicating
that
these
two
products
could
be
technical
and
economical
substitutes
in
every
critical
use
category
for
which
their
products
are
registered.
Please
see
response
to
comments
in
section
1.
a.
as
well.
In
the
U.
S.
nomination,
the
EPA
took
great
pains
to
describe
the
specific
circumstances
that
make
1,3­
D,
which
may
be
otherwise
technically
and
economically
feasible,
not
feasible
for
a
certain
portion
of
total
domestic
use.
The
EPA
determined
that
1,3­
D
products
can
be
used
in
a
variety
of
circumstances
but
there
are
some
factors,
such
as
regulatory
limits
on
the
use
of
1,3­
D
or
the
presence
of
heavy
nutsedge
weed
populations
that
would
make
the
1,3­
D
products
not
technically
and
economically
feasible.
EPA,
in
consultation
with
the
U.
S.
Department
of
Agriculture
(
USDA),
has
determined
that
over
the
portion
of
the
crop
there
may
be
technical
limitations
to
the
use
of
1,3­
D
treatments
or
economic
losses
associated
with
the
use
of
this
fumigant.
5
The
commenter
specifically
pointed
to
comments
made
in
the
2004
Methyl
Bromide
Technical
Options
Committee
(
MBTOC)
report
where
the
committee
indicated
that
there
are
technically
feasible
herbicides
available
to
control
nutsedge,
specifically
halosulfuron
for
peppers
and
halosulfuron
and
triflxysulfuron
for
tomatoes,
that
can
be
used
in
combination
with
1,3­
D
products
to
provide
complete
spectrum
pest
control.
As
described
in
the
nomination,
both
of
these
herbicides
have
been
recently
registered
and
can
provide
effective
control
of
nutsedge
populations,
however
certain
regulatory
restrictions
exist
on
the
use
of
these
products
causing
them
to
be
not
technically
available
within
current
cropping
systems
for
the
exempted
portion
of
production.
For
example,
both
products
have
plant
back
restrictions
which
limit
the
ability
of
growers
to
plant
a
second
crop.
Almost
without
exception,
U.
S.
pepper
and
tomato
farmers
plant
more
than
one
crop
on
the
same
acreage.
The
U.
S.
nominations
additionally
analyzed
the
feasibility
of
using
1,3­
D
products
without
the
herbicides
and
finds
that
the
treatment
is
not
economically
feasible.
For
example,
a
typical
tomato
farm
in
the
southeastern
U.
S.
would
experience
approximately
$
5,700
in
losses
per
acre
using
1,3­
D
products
compared
to
using
methyl
bromide
due
to
losses
in
product
yield
and
quality.

The
commenter
indicated
the
use
of
alternatives,
specifically
an
emulsified
formulation
of
chloropicrin
(
Pic
EC)
and
metham
sodium
in
combination
with
chloropicrin,
is
technically
feasible
for
strawberry
production
in
California
according
to
the
2004
MBTOC
report.
Again,
the
U.
S.
nomination
describes
the
limitations
of
these
alternatives
for
the
specific
circumstance
of
the
nominated
acreage.
For
example,
15%
of
the
nominated
area
is
located
on
hilly
terrain
that
makes
the
use
of
drip
applied
fumigants
a
technically
infeasible
alternative.
Furthermore,
chloropicrin
is
not
a
full
spectrum
fumigant.
Chloropicrin
provides
good
control
of
disease
but
the
nomination
clearly
states
that
the
nominated
area
additionally
has
nematode
and
weed
pressures
as
well.
The
commenter
did
not
provide
a
copy
of
a
study
documenting
comparable
pest
control
and
yields
using
Pic
EC
for
areas
with
nematode,
weed,
and
disease
pressures.
Further,
metham
sodium
used
with
chloropicrin
is
not
economically
feasible
according
to
the
nomination.
EPA,
in
consultation
with
USDA,
has
determined
that
yield
differences
could
result
in
24%
decline
in
gross
revenues
on
average
compared
to
methyl
bromide.
EPA
received
comments
that
the
Agency
should
reduce
the
amounts
the
methyl
bromide
exempted
from
the
phaseout
to
allow
for
the
uptake
of
a
newly
registered
alternative,
sulfuryl
fluoride,
for
mills
and
grains.
.
Sulfuryl
fluoride
(
SF)
was
registered
by
EPA
for
use
on
grains
and
flour
mills
on
January
23,
2004
under
the
trade
name
Profume.
The
SF
fumigant
has
been
available
in
the
U.
S.
since
1961
under
the
trade
name
Vikane
for
non
food
uses
such
as
structural
termite
fumigation.
The
registrant,
Dow
Agrochemicals,
is
pursuing
registration
of
Profume
for
use
on
dried
fruit
and
tree
nuts
and
non­
specific
food
handling
and
storage.
The
U.
S.
originally
nominated
536,328
kilograms
(
kg)
of
methyl
bromide
for
critical
uses
in
mills
and
processors
for
the
year
2005.
As
described
in
the
notice
of
proposed
rulemaking,
this
nomination
was
reduced
by
the
Parties
to
483,000
kgs
to
6
account
for
the
market
uptake
of
alternatives
including
sulfuryl
fluoride
and
to
account
for
more
efficient
methyl
bromide
fumigation
practices.
This
reduction
is
a
10%
reduction
from
the
originally
nominated
amount.
The
2004
MBTOC
report
on
recommended
exemptions
for
next
year
(
2006)
states
that
a
further
10%
reduction
for
flour
mills
could
be
warranted
to
allow
for
the
adoption
of
a
number
of
alternatives,
of
which
sulfuryl
fluoride
is
one,
and
more
efficient
methyl
bromide
fumigation
techniques.
Since
the
2005
exemption
had
already
been
reduced
by
10%
for
sulfuryl
fluoride
and
that
10%
seems
to
be
a
reasonable
technical
adoption
rate
according
to
the
MBTOC
as
quoted
by
the
commenter.
EPA
does
not
believe
further
reductions
for
2005
can
be
justified
at
this
time
given
the
lack
of
specific
technical
and
economic
feasibility
data
provided
to
the
Agency
on
Profume
and
given
the
lack
of
specific
market
penetration
data
provided
by
the
commenter
to
substantiate
assertions
for
a
larger
market
penetration.
EPA
understands
that
Profume
can
be
effective
in
controlling
insects,
although
higher
rates
of
the
chemical
are
required
to
control
insect
eggs.
As
this
is
a
newly
registered
compound,
EPA
does
not
have
sufficient
data
at
this
time
to
conduct
a
technical
and
economic
analysis
to
determine
if
further
reductions
are
warranted.
One
key
uncertainty
regarding
the
market
penetration
and
economic
feasibility
of
Profume
is
the
cost
of
the
product
on
a
per
pound
basis
and
the
cost
of
a
typical
fumigation.
The
Agency
anticipates
that
as
trial
fumigations
or
commercial
fumigations
take
place,
that
the
registrant
will
be
able
to
compile
technical
and
economic
data
to
EPA
for
use
in
the
development
of
future
critical
use
nominations.
In
addition
to
the
technical
and
economic
data
required
to
conduct
a
critical
use
assessment,
as
noted
by
the
Technology
and
Economic
Assessment
Panel
(
TEAP),
a
scientific
panel
that
advises
the
Parties
to
the
Montreal
Protocol,
a
specific
alternative
may
take
up
to
5
fumigation
cycles
of
use
before
efficacy
can
be
determined
in
the
specific
circumstances
of
the
user.
This
would
mean
that
several
repeat
fumigations
would
be
needed
before
determining
the
technical
feasibility
of
an
alternative.
An
additional
limitation
to
SF
uptake
at
this
time
is
that
many
mills
in
the
U.
S.
produce
partial
recipe
products
that
contain
ingredients
such
as
sugar
or
baking
soda.
The
registration
of
SF
does
not
include
tolerances
for
these
ingredients
thus
limiting
the
use
of
this
alternative
for
a
certain
portion
of
the
sector.
Finally
SF
is
not
registered
in
California
and
therefore
can
not
be
used
by
mills
in
that
state.
One
commenter
provided
information
on
the
alternative
Dazitol
and
suggested
that
the
critical
use
exemptions
could
be
eliminated
for
all
U.
S.
growers,
except
those
in
California.
This
commenter
further
indicates
that
this
alternative
was
not
considered
internationally
by
the
MBTOC
during
their
review
of
the
exemptions.
Dazitol
is
a
registered
nematicide
and
the
MBTOC
list
of
alternatives
indicates
"
nematicides"
as
one
of
the
alternatives
Parties
must
consider.
EPA
believes
that
there
may
be
effective
nematicidal
compounds
on
the
market
today
that
are
cost
competitive
to
methyl
bromide.
However,
those
uses
nominated
and
authorized
for
an
exemption
are
not
uses
that
require
methyl
bromide
because
of
nematode
pressure
alone.
Another
commenter
indicated
to
EPA
that
there
are
effective
alternatives
to
control
nematodes
and
the
Agency
should
remove
this
limiting
critical
condition
from
Appendix
L.
These
commenters
are
correct
and
the
Agency
7
agrees
with
this
assessment
for
most
uses.
The
Agency
incorrectly
characterized
this
limiting
critical
condition
in
the
proposal
and
removed
it
accordingly
from
the
final
rule.
The
Agency
did
not
intend
to
list
this
particular
condition
as
a
stand
alone
condition
for
most
uses
but
rather
as
part
of
a
high
pest
pressure
complex.
In
other
words,
if
a
grower
had
high
nematode
pressure
alone,
the
U.
S.
did
not
nominate
that
use
for
an
exemption.
However,
if
the
grower
has
high
nematode
or
disease
pressure
along
with
difficult
weed
pressure
then
there
is
a
technical
or
in
some
uses
a
technical
and
economic
feasibility
barrier
to
using
the
alternatives.
EPA
did
consider
organic
agricultural
techniques
in
evaluating
the
technical
and
economic
feasibility
of
alternatives
however
the
Agency
did
not
view
these
techniques
as
stand
alone
replacements
for
methyl
bromide
or
as
the
next
best
alternative.
The
definition
of
a
critical
use
is
related
to
the
criteria
set
forth
in
Decision
IX/
6,
not
to
a
subjective
standard
that
a
particular
fumigation
need
is
not
important.
If
a
particular
use
of
methyl
bromide
does
not
have
technically
and
economically
feasible
alternatives
available
to
it,
and
there
would
be
significant
market
disruption
without
an
exemption,
then
the
use
may
qualify
for
a
critical
use
exemption.

 
The
majority
of
the
commenters
arguing
that
the
proposed
cap
is
too
high
state
that
the
amount
of
methyl
bromide
to
be
set
aside
in
2005
for
critical
uses
is
larger
than
the
total
quantity
of
methyl
bromide
used
in
2003
[
0133,
0140,
0163,
0164,
0190,
0241,
0246]
 
One
commenter
refers
to
data
stating
that
the
total
methyl
bromide
use
in
the
U.
S.
in
2003
was
7,764
metric
tons,
which
is
1,268
metric
tons
lower
than
the
amount
proposed
for
critical
uses
in
2005
[
0133,
0140,
0246].
 
This
same
commenter
submits
that
the
cap
for
2005
must
be
less
than
total
use
in
2003
for
two
reasons:
first,
"
only
some
uses
prevalent
in
2003
have
been
deemed
critical,
and
thus
the
amount
used
in
2003
by
non­
critical
use
categories
should
be
subtracted
off
the
top
of
the
2003
amount";
and,
second,
"
there
has
been
progress
since
2003
in
applying
alternatives
in
the
critical
use
categories,
and
this
progress
needs
to
be
accounted
for
with
further
reductions
in
the
critical
use
amount."
[
0133,
0140,
0246]
 
The
commenter
also
refers
to
an
October
7,
2004
letter
from
EPA
to
Senator
James
Jeffords
providing
other
estimates
of
use.
The
commenter
argues
that
the
letter
references
data
for
2002,
not
2003,
and
thus
says
little
about
total
use
in
2003.

Response
#
3:
The
commenter
implicitly
argues
that
exempted
critical
use
should
be
lower
than
the
amounts
of
methyl
bromide
used
in
2003.
EPA
does
not
agree
that
critical
use
must
be
lower
than
use
in
some
year
prior
to
the
phaseout.
There
could
be
technical
reasons
why
use
in
2005
or
a
future
year
could
be
higher
than
use
in
2003:
for
example
a
pest
outbreak,
increasing
market
demand
etc.
The
U.
S.
made
a
policy
decision
not
to
nominate
or
exempt
methyl
bromide
to
account
for
growth
in
a
commodity
sector.
EPA
understands
that
other
countries
did
request
methyl
bromide
quantities
to
accommodate
growth
in
an
industry.
Although
the
U.
S.
as
a
8
policy
matter
elected
to
exclude
growth
in
methyl
bromide
use
after
the
phaseout,
we
do
not
agree
that
the
U.
S.
is
required
to
do
so.
That
being
said,
in
today's
rule,
EPA
is
not
making
more
methyl
bromide
available
in
2005
than
was
used
in
2003
according
to
the
best
available
data.
EPA
believes
that
7,764
(
31%
of
baseline)
is
one
estimate
of
use
in
2003
that
bounds
the
lower
part
of
the
range
of
where
critical
use
may
lie
for
the
year
2005.
Use
may
actually
be
higher
than
31%
of
baseline
and
some
estimates
of
use
would
indicate
that
the
amounts
used
are
closer
to
40%
of
baseline
or
higher
as
described
in
the
following
paragraph.
The
31%
estimate
is
a
"
top
down"
estimate
of
use
looking
at
the
change
in
known
inventories
combined
with
production,
import,
and
export
data.
This
use
figure
may
not
capture
all
use
in
the
U.
S.
because
we
did
not
have
complete
information
on
the
size
and
drawdown
on
inventories
in
2003.
As
stated
in
the
letter
to
Senator
Jeffords,
the
information
we
did
have
on
inventories
was
collected
from
manufacturing
facilities,
importers
and
major
distributors.
It
did
not
reflect
any
inventories
that
might
exist
on­
farm
or
that
might
be
held
by
pesticide
reformulators
or
distributors.
Nor
did
it
reflect
any
amounts
that
might
be
held
by
individual
end
users.
Other
estimates
of
use
employ
a
"
bottom
up"
approach.
EPA
consulted
a
number
of
pesticide
use
databases
and
developed
estimates
of
use
that
were
higher
than
31%.
Data
sources
consulted
include
the
National
Agricultural
Statistical
Service
(
NASS)
of
the
U.
S.
Department
of
Agriculture,
the
State
of
California
Department
of
Pesticide
Regulation,
and
proprietary
sources
available
to
the
EPA.
Estimates
using
these
data
sources
put
U.
S.
use
in
2002,
the
most
recent
year
of
data
available,
between
35
and
50%
of
the
1991
baseline.
Although
the
2002
data
does
not
tell
us
what
use
was
like
in
2003,
it
is
the
best
data
available
to
the
Agency
that
tracks
actual
fumigations.
An
important
"
bottom
up"
estimate
of
critical
use
was
developed
by
the
cross­
Agency
team
that
prepared
a
detailed,
sector­
by­
sector
analysis
of
the
projected
need
for
methyl
bromide
in
the
U.
S.
in
2005.
The
results
of
that
team's
analysis
suggested
that
in
2005,
the
U.
S.
would
need
to
request
a
CUE
for
a
level
equivalent
to
39%
of
the
1991
baseline.
As
discussed
in
the
preamble,
during
the
international
review
process
this
level
was
adjusted
to
account
for
various
factors,
including
double
counting
for
example.
Taking
into
account
these
adjustments,
the
35%
critical
use
level
approved
by
the
Parties
largely
confirmed
the
result
of
the
cross­
Agency
team's
bottom­
up
analysis.
EPA
anticipates
that
the
use
data
reported
to
the
Agency
under
the
exemption
framework
described
in
today's
rule
will
help
the
U.
S.
government
develop
a
more
complete
picture
of
actual
use
in
critical
categories.
To
the
extent
that
there
are
new
alternatives
available,
EPA
took
them
into
account
in
preparing
the
nomination.
EPA
did
not
receive
any
additional
information
in
response
to
the
request
for
comments
that
would
warrant
further
adjustments.
9
1.
c.
No
need
for
exemptions
Commenter
Organization
Document
ID
Number
Jonathon
Slevin
Champon
Millennium
Chemicals,
Inc.
0122
B.
Sachau
N/
A
0124
David
K.
Mueller
Pest
Managers
for
A
Better
Environment
0134
B.
Sachau
N/
A
0136
Christine
Hoekenga
N/
A
0143
Harry
Nelson
N/
A
0156
Cyril
May
N/
A
0157
Julia
Glahn
N/
A
0159
Anonymous
N/
A
0160
Linda
G.
Akers
N/
A
0161
Paul
Speck
N/
A
0162
Ruth
Niswander
N/
A
0163
Amber
Standridge
N/
A
0164
Karl
Hanzel
N/
A
0165
Laurence
Kirby
N/
A
0166
Lance
McKee
N/
A
0167
Laura
Turner
N/
A
0168
Michel
Ravina
N/
A
0169
Betty
Sager
N/
A
0170
George
&
Frances
Alderson
N/
A
0171
Anonymous
N/
A
0172
Mary
Stock
N/
A
0173
Ann
Lynnworth
N/
A
0174
Mathew
Trigg
N/
A
0175
Neil
Fahey
N/
A
0176
Peg
&
Dick
Bauman
N/
A
0177
Randy
Sailer
N/
A
0178
Anonymous
N/
A
0179
Anonymous
N/
A
0180
Shawn
Spooner
N/
A
0181
T.
V.
Cunilio
CoSAF
Inc.
0182
Vincent
Contreras
N/
A
0183
Lorne
K.
Garrettson
N/
A
0184
Anne
Daletski
N/
A
0185
Frank
&
Carol
Nelson
N/
A
0186
Doug
Friedman
N/
A
0187
Fran
Sanders
N/
A
0188
George
Durgerian
N/
A
0189
Howard
Deutch
N/
A
0190
Jerry
Goodman
N/
A
0191
John
&
Sharon
Stewart
N/
A
0192
John
Reynolds
N/
A
0193
Marsha
A.
Snell
N/
A
0194
Amy
Johnson
N/
A
0195
David
Horvath
N/
A
0196
Gary
Higley
N/
A
0197
Patricia
Treece
N/
A
0198
10
Kevin
Gratt
N/
A
0201
Brian
Hebeisen
N/
A
0234
Liz
Killian
N/
A
0235
Taylor
Young
N/
A
0236
Yu­
Ming
Ni
N/
A
0238
Alex
Kaplan
N/
A
0239
Heather
Germadnik
N/
A
0240
Dennis
Thomas
N/
A
0241
David
Doniger
(
letter
to
Linda
Fisher)
NRDC
0287
 
Fifty­
three
commenters
request
that
EPA
not
allow
methyl
bromide
critical
use
exemptions
[
0124,
0136,
0143,
0156,
0157,
0159,
0160,
0161,
0162,
0163,
0164,
0165,
0166,
0167,
0168,
0169,
0170,
0171,
0172,
0173,
0174,
0175,
0176,
0177,
0178,
0179,
0180,
0181,
0182,
0183,
0184,
0185,
0186,
0187,
0188,
0189,
0190,
0191,
0192,
0193,
0194,
0195,
0196,
0197,
0198,
0201,
0234,
0235,
0236,
0238,
0239,
0240,
0241].
In
addition,
EPA
received
four
mass
letter
campaigns
on
this
issue
for
a
total
of
15,123
on
time
comments.
 
Many
of
these
commenters
note
the
environmental
and
public/
occupational
health
concerns
associated
with
methyl
bromide
use.
Indeed,
eight
make
the
specific
statement
that
methyl
bromide
"
depletes
the
ozone
layer,
exposing
millions
of
Americans
to
skin
cancer
and
a
host
of
other
diseases"
and
"
also
causes
prostate
cancer
in
workers
who
apply
pesticides
and
others
directly
exposed
to
it."
[
0143,
0157,
0161,
0164,
0185,
0190,
0193,
0196]
 
Six
of
these
commenters
are
of
the
opinion
that
producers/
users
had
fair
warning
of
the
methyl
bromide
phase
out
[
0176,
0179,
0185,
0196,
0197,
0241].
Specifically,
one
commenter
makes
the
remark
that
"
pesticide
producers
and
agribusiness
have
already
had
12
years
to
phase
out
this
chemical
and
adopt
safer
alternatives."
[
0241]

Response
#
4:
The
CAA
allows
the
Agency
to
create
an
exemption
for
critical
uses
to
the
extent
consistent
with
the
Protocol.
The
Protocol
authorizes
an
exemption
to
the
extent
decided
by
the
Parties.
In
Decision
Ex.
I/
3,
the
Parties
decided
to
permit
a
limited
exemption
for
specified
uses
nominated
by
the
United
States.
EPA,
in
conjunction
with
other
U.
S.
government
entities,
spent
substantial
time
reviewing
applications
for
critical
use
exemptions
and
preparing
a
nomination
based
on
the
lack
of
technically
and
economically
feasible
alternatives
for
the
nominated
uses.
As
discussed
below,
EPA
does
not
have
new
information
that
would
change
the
basis
for
the
nomination.
Although
the
Act
does
not
require
EPA
to
establish
an
exemption,
EPA
believes
that
the
lack
of
suitable
alternatives
for
the
uses
listed
as
approved
critical
uses
in
today's
rulemaking
warrants
the
establishment
of
an
exemption.
The
history
of
the
ozone
protection
programs
has
been
the
transition
of
industries
away
from
production,
import,
and
use
of
ozone
depleting
chemicals
to
alternatives.
In
some
instances
a
successful
transition
was
possible
within
the
allotted
time.
In
other
instances,
additional
time
has
been
required
to
allow
for
the
development
and
market
penetration
of
alternatives.
In
fact,
more
than
ten
years
11
after
the
phaseout
of
chlorofluorocarbons
(
CFCs),
the
U.
S.
government
is
still
exempting
the
production
of
CFCs
for
essential
uses
in
metered
dose
inhalers.
In
the
instance
of
critical
uses
where
suitable
alternatives
are
not
yet
available
for
all
uses,
EPA
believes
it
would
be
inconsistent
with
the
history
and
the
goals
of
the
ozone
protection
program
to
not
allow
for
a
safety
valve
in
accordance
with
the
provisions
of
both
international
and
domestic
law.
EPA
appreciates
the
commenters
concern
regarding
farm
worker
exposure
to
methyl
bromide.
EPA
will
address
farm
worker
exposure
issues
through
the
reregistration
of
methyl
bromide
under
the
Federal
Insecticide,
Fungicide,
and
Rodenticide
Act
where
the
Agency
is
specifically
charged
with
examining
human
health
concerns
such
as
by­
stander
and
worker
exposure
to
pesticides,
not
under
the
Title
VI
of
the
Clean
Air
Act
which
is
designed
to
address
depletion
of
stratospheric
ozone
and
resulting
exposures
to
UV
radiation.

 
Two
commenters
believe
that
the
U.
S.
should
not
qualify
for
critical
use
exemptions
because
the
U.
S.
has
not
made
an
effort
to
seriously
evaluate
and
commercialize
methyl
bromide
alternatives
[
0122,
0134].
 
The
first
of
these
commenters
is
concerned
that
there
has
not
been
enough
consideration
given
to
methyl
bromide
replacements
for
pre­
plant
uses
i.
e.
soil
fumigation
[
0122],
while
the
second
is
concerned
with
the
lack
of
attention
given
to
alternatives
for
post­
harvest
uses
i.
e.
mill
fumigation
[
0134].
 
One
commenter
is
concerned
that
applicants
did
not
conduct
sufficient
research
to
justify
their
rights
to
an
exemption
based
on
the
criteria
set
forth
in
Decision
IX/
6
[
287]

Response
#
5:
The
U.
S.
government
alone
has
spent
more
than
$
150
million
on
research
into
alternatives
to
methyl
bromide
and
the
U.
S.
is
seeking
ways
to
hone
our
research
efforts.
In
addition,
EPA
has
registered
all
but
one
methyl
bromide
alternative
currently
in
the
registration
queue.
In
addition
to
the
government
funded
activities,
EPA
believes
that
private
sector
companies
have
invested
millions
of
dollars
to
develop
and
register
alternatives
(
e.
g.
Arvesta's
registration
application
for
methyl
iodide,
Dow's
registration
of
sulfuryl
fluoride)
in
addition
to
the
money
spent
by
commodity
groups
on
research.
Typically
commodity
groups
will
make
sizable
in­
kind
contributions
to
government
funded
research
projects
in
the
form
of
donated
land
and
labor.
EPA
does
not
keep
detailed
records
on
the
amounts
of
money
spent
on
private
sector
research.
However,
as
part
of
an
application
for
a
critical
use
exemption,
EPA
required
all
commodity
groups
to
indicate
prior
and
future
research
into
alternatives.
Almost
all
of
the
applicants
have
conducted
research
into
alternatives.
In
some
instances
there
were
very
small
users
of
methyl
bromide
who
applied
for
an
exemption
such
as
Michigan
tomato
growers
who
had
not
done
any
research
on
their
own
but
these
applicants
developed
research
plans
as
part
of
their
application.
In
the
example
of
Michigan
tomato
growers,
they
are
currently
in
their
second
consecutive
year
of
testing
alternatives
on
local
plots.
The
historic
and
12
prospective
research
information
provided
by
applicants
for
the
exemption
is
available
in
the
docket
for
this
rulemaking.

1.
d.
Total
amount
is
insufficient
to
meet
critical
use
demand
Commenter
Organization
Document
ID
Number
Patrick
Cushing
et
al.
Roger
Williams
University
School
of
Law
0126
Daren
Gee
N/
A
0140­
DG
(
transcript
of
public
hearing)
Douglas
H.
Fender
Turfgrass
Producers
International
0205
Ken
Woody
Plum
Creek
Timber
Company
0209
A.
R.
Chase
California
Cut
Flower
Commission
0210
Wade
Purvis
Pacific
Collier
Fresh
0215
Edward
M.
Ruckert
Crop
Protection
Coalition
0219
James
A.
Bair
North
American
Millers'
Association
0220
Stephen
E.
Payne
Pet
Food
Institute
(
PFI)
0221
John
T.
Ivancovich
N/
A
0222
Daniel
A.
Botts
Florida
Fruit
&
Vegetable
Association
(
FFVA)
0223
Joel
D.
Jackson
Florida
Golf
Course
Superintendents
Association
0230
Paul
Niday
Trical,
Inc.
0231
Don
Bates
Bates
Sons
&
Daughters
0232
Rex
Cunningham
Emerald
Island
Turf,
Inc.
0233
David
Corbett
David
Corbett
Farms,
LLC
0249
Randy
DeWitt
DeWitt
Produce
Co.,
Inc.
0250
Donnie
H.
Morris
Georgia
Fruit
and
Vegetable
Growers
Association
0251
Gibbs
Patrick,
Jr.
Gibbs
Patrick
Farms,
Inc.
0252
Melvin
Mathis
MGM
Plant
Company
0253
Wilbert
Morgan
Morgan
Farms
0254
Harry
Vanderveer
Texas
Forest
Service
0255
Mark
Harrell
Florida
Strawberry
Growers
Association
0256
Don
Stringfield
MeadWestvaco
Corporation
0257
Paul
Phypers,
Jr.
Happiness
Farms,
Inc.
0259
 
Two
sets
of
comments
assert
that
the
proposed
cap
on
the
amount
of
methyl
bromide
for
critical
uses
for
the
US
for
2005
of
8,942
metric
tons
is
too
low
and
that
the
amount
should
be
increased
to
at
least
9,777
metric
tons
[
0219,
0223].
 
It
is
noted
that
the
amount
of
methyl
bromide
originally
applied
for
by
US
critical
use
exemption
(
CUE)
applicants
was
approximately
16,000
metric
tons
and
that,
based
on
an
extensive
review
by
more
than
40
government
PhD
scientists,
a
reduced
amount
of
9,777
metric
tons
was
requested
in
the
US
nomination
submitted
to
the
Parties
to
the
Montreal
Protocol.
These
commenters
believe
that
the
Parties
reduced
the
US
nomination
amount
to
8,942
metric
tons
without
just
cause
and
that
there
is
a
clear
need
for,
at
a
minimum,
the
9,777
metric
tons
requested
by
the
US
in
its
nomination.
13
Further,
these
commenters
state
that
the
US
nominated
amount
should
only
be
reduced
on
the
basis
of
"
clear
and
convincing
substantial
evidence
which
demonstrates
that
it
can
be
reduced
without
harming
the
user
community."
[
0219,
0223]

Response
#
6:
With
today's
action,
EPA
is
finalizing
a
determination
that
8,942,214
kgs
of
methyl
bromide
are
required
to
satisfy
critical
uses
for
2005.
EPA
intends
to
address
supplemental
and
new
CUE
allocations
in
a
subsequent
rulemaking
following
the
16th
Meeting
of
the
Parties
to
the
Montreal
Protocol.
EPA
is
authorizing
the
full
amount
of
new
production/
import
allowable
under
Decision
Ex
I/
3,
a
total
of
7,659,000
kgs,
and
is
authorizing
those
entities
that
hold
inventories
of
methyl
bromide
to
sell
1,283,214
kgs
for
approved
critical
uses
during
2005.
As
described
in
the
proposed
rule,
this
amount
is
adjusted
from
the
9,777,288
kilograms
originally
nominated
by
the
U.
S.
government.
The
difference
between
the
two
amounts
is
accounted
for
by
the
following
adjustments
as
determined
by
MBTOC,
TEAP
and
the
Parties
to
the
Montreal
Protocol:
(
a)
the
removal
of
methyl
bromide
for
tobacco
seedling
float
trays,
totaling
1,323
kilograms,
a
use
category
that
the
Parties
agreed
did
not
meet
the
conditions
for
a
critical
use
exemption,
(
b)
a
reduction
of
53,328
kilograms
to
account
for
the
market
uptake
of
sulfuryl
fluoride,
a
newly
registered
alternative
for
the
fumigation
of
stored
food
items,
(
c)
a
reduction
of
635,027
kilograms
from
strawberry
field
uses
of
methyl
bromide
due
to
further
adoption
of
alternatives,
in
particular
emulsified
1,3
dichloropropene
formulations,
(
d)
a
reduction
of
145,367
kilograms
for
turfgrass
production
to
reflect
lower
application
rates
using
mixtures
with
lower
concentrations
of
methyl
bromide,
and
(
e)
a
small
number
of
kilograms
based
on
rounding
adjustments.
The
commenter
did
not
provide
EPA
with
any
information
on
which
of
these
technical
adjustments
to
the
overall
critical
use
amount
is
in
error
or
the
reason
why
these
amounts
should
changed.
In
any
event,
in
order
to
maintain
consistency
with
the
critical
use
provision
in
Article
2H
of
the
Protocol,
EPA
will
not
authorize
a
greater
amount
of
new
production/
import
than
permitted
by
the
Parties.
For
a
more
detailed
discussion
of
the
relationship
between
the
Parties'
decisions
and
this
rulemaking,
see
Response
#
37.

 
One
commenter
contends
that
the
proposed
reduction
of
53,329
kgs
for
the
Mills
and
Process
sector
to
account
for
market
uptake
of
sulfuryl
fluoride
is
too
much
[
0220].
 
The
commenter
notes
that
a
reduction
of
53,329
kgs
represents
more
than
10
percent
of
the
total
quantity
of
methyl
bromide
approved
for
this
sector.
Further,
the
commenter
states
"
while
we
believe
that
sulfuryl
fluoride
will
eventually
replace
some
methyl
bromide
usage,
we
do
not
believe
it
will
have
achieved
by
2005
either
the
technical
or
economic
feasibility
to
replace
10
percent
of
the
MB
usage."

Response
#
7:
EPA
does
not
have
flexibility
to
adjust
the
total
amount
of
exempted
methyl
bromide
above
the
maximum
cap
of
30%
of
baseline
for
new
production
and
35%
for
total
use.
In
today's
rule,
EPA
is
making
the
maximum
14
30%
available
for
exempted
production
and
35%
for
exempted
use.
Therefore
EPA
cannot
issue
additional
CUAs,
or
raise
the
total
number
of
CUAs
plus
CSAs
issued
above
35%
of
baseline,
absent
additional
authorizations
from
the
Parties.
However,
EPA
is
not
adopting
a
sector­
by­
sector
approach
and
thus
is
not
imposing
a
cap
on
the
Mills
and
Process
sector.
In
today's
rule
EPA
is
creating
flexibility
in
the
exemption
program
to
allow
amounts
of
critical
use
methyl
bromide
to
move
from
one
use
area
to
another
based
on
market
forces.
This
flexibility
is
a
safety
valve
to
address
situations
such
as
this
one
where
the
amount
referenced
in
Decision
Ex
I/
3
for
a
specific
sector
may
not
be
sufficient
to
meet
demand
in
that
sector.
EPA's
ozone
protection
program
has
a
long
history
of
using
market
based
approaches
to
implement
our
Clean
Air
Act
requirements
and
today's
rule
is
no
exception.
For
more
information
on
why
EPA
is
not
adopting
a
sector­
by­
sector
approach,
please
refer
to
comments
in
section
4
of
this
document.

 
While
not
specifically
stating
that
the
amount
of
methyl
bromide
for
critical
uses
is
insufficient,
twenty­
four
commenters
express
a
concern
that
there
is
a
lack
of
effective,
economically
viable
alternatives
[
0126,
0140­
DG,
0205,
0209,
0210,
0215,
0220,
0221,
0222,
0230,
0231,
0232,
0233,
0249,
0250,
0251,
0252,
0253,
0254,
0255,
0256,
0257,
0258,
0259].

Response
#
8:
For
some
uses,
there
are
not
effective
and
economic
alternatives
available
yet.
It
is
for
this
reason
that
EPA
is
creating
a
critical
use
exemption
with
today's
rule
to
allow
for
exempted
production
to
meet
the
needs
of
users
who
do
not
have
technical
and
economic
alternatives
available
to
them.

1.
e.
Total
amount
should
include
amounts
pending
before
Parties
Commenter
Organization
Document
ID
Number
Dan
Legard
California
Strawberry
Commission
0140­
DL
(
transcript
of
public
hearing)
Edward
M.
Ruckert
Crop
Protection
Coalition
0219
 
Two
commenters
note
that
current
rulemaking
proposal
document
does
not
make
mention
of
the
additional
CUE
amounts
for
2005
that
the
Parties
to
the
Montreal
Protocol
will
be
considering
in
November
2004
[
0140­
DL,
0219].
 
One
commenter
requests
that
EPA
include
these
additional
amounts
in
the
final
rule
of
this
rulemaking
or,
alternatively,
"
should
immediately
initiate
rulemaking
on
such
supplemental
amounts
so
that
the
additional
amount
may
be
made
available
as
soon
as
possible
in
early
2005."
[
0219]
 
The
other
commenter
strongly
urges
EPA
to
issue
a
short
amendment
to
the
notice
of
proposed
rulemaking
and
publish
it
in
the
Federal
Register
in
late
September
or
early
October
2004.
Further,
if
the
additional
amounts
are
approved
by
the
Parties
in
November,
the
commenter
asks
that
the
final
rule
take
into
account
the
increased
CUE
levels.
It
is
to
be
noted
that
this
commenter
is
particularly
concerned
with
the
increase
in
the
CUE
amount
for
California
strawberry
field
use
[
0140­
DL]
15
Response
#
9:
EPA
recognizes
that
there
are
additional
nominations
for
a
critical
use
exemption
for
the
year
2005
that
were
authorized
at
the
16th
Meeting
of
the
Parties
in
November
2004.
The
amounts
exempted
in
today's
rule
only
include
those
amounts
authorized
by
the
Parties
at
their
First
Extraordinary
Meeting
of
the
Parties.
EPA
understands
the
need
to
have
exempted
2005
material
available
as
soon
as
possible
in
2005
and
will
commence
a
notice
and
comment
rulemaking
as
soon
as
possible
after
an
authorization
is
received
for
the
additional
2005
amounts.
However,
it
should
be
noted
that
at
the
stakeholder
meetings
held
in
2002,
EPA
counseled
those
who
wished
to
wait
for
the
second
round
of
applications
to
make
a
2005
exemption
application,
that
an
authorization
would
not
be
received
until
nearly
the
end
of
2004
and
that
there
would
be
additional
risk
in
taking
this
route
because
of
the
late
timing.
Some
uses
waited
until
the
second
round
to
apply
for
an
exemption
and
therefore
will
not
have
any
certainty
about
their
exemption
until
late
in
the
process.
Section
604(
d)(
6)
of
the
CAA
states
that
"
after
notice
and
the
opportunity
for
public
comment,"
EPA
"
may
exempt
the
production
,
importation,
and
consumption
of
methyl
bromide
for
critical
uses."
Thus,
EPA
is
required
to
conduct
a
notice
and
comment
rulemaking
on
all
uses
and
amounts
of
methyl
bromide
authorized
by
the
Parties
for
a
critical
use
exemption.
Therefore,
EPA
can
not
roll
supplemental
authorizations
into
today's
final
rule
as
the
public
will
not
have
had
an
opportunity
to
comment
on
those
supplemental
uses
and
amounts
of
methyl
bromide.
EPA
is
considering
beginning
the
notice
and
comment
process
earlier
for
future
years
of
the
critical
use
exemption,
potentially
before
an
authorization
from
the
Parties
is
secured,
to
provide
as
much
certainty
as
soon
as
possible
to
the
regulated
community.
However,
if
EPA
were
to
propose
a
critical
use
exemption
for
uses
and
amounts
that
were
not
ultimately
authorized
by
the
Parties
for
an
exemption,
those
uses
and
amounts,
even
if
they
received
favorable
comment,
could
not
be
included
in
the
final
rule.
Another
issue
of
concern
to
the
Agency
is
the
framework
of
the
decisions
taken
by
the
Parties
in
future
years.
Because
this
is
a
new
exemption,
EPA
believes
that
key
aspects
of
how
the
exemption
must
be
implemented
could
change.
If
EPA
were
to
issue
a
notice
of
proposed
rulemaking
before
a
decision
was
taken
by
the
Parties,
EPA
might
have
to
re­
propose
certain
framework
elements
of
the
exemption
to
ensure
compliance
with
the
decision.
16
2.
Summary
of
Comments
Relating
to
AMOUNT
FROM
STOCKS
2.
a.
Legal
basis
to
control
stocks
Commenter
Organization
Document
ID
Number
David
Doniger
Natural
Resources
Defense
Council
(
NRDC)
0133,
0140­
DD
(
transcript
of
public
hearing),
246
Richard
Matoian
California
Fig
Industry
0202
Dennis
Balint
California
Walnut
Commission
0203
Douglas
H.
Fender
Turfgrass
Producers
International
0205
Richard
Peterson
California
Dried
Plum
Board
0206
Steve
Hensley
USA
Rice
Federation
(
USA
Rice)
0214
Edward
M.
Ruckert
Crop
Protection
Coalition
0219
James
A.
Bair
North
American
Millers'
Association
0220
Daniel
A.
Botts
Florida
Fruit
&
Vegetable
Association
(
FFVA)
0223
Ann
M.
Oxford
Albemarle
Corporation
0226
Steve
Godbehere
Hendrix
and
Dale,
Inc.
0227
Paul
Niday
TriCal,
Inc.
0231
Courtney
M.
Price
et
al.
American
Chemistry
Council's
Methyl
Bromide
Industry
Panel
0245
John
Sansone
Cardinal
Professional
Products
0248
David
K.
Mueller
Pest
Managers
for
A
Better
Environment
0134
 
Three
commenters
commented
on
EPA's
approach
to
adjusting
the
amount
of
newly
authorized
methyl
bromide
for
the
exemption
based
on
the
availability
of
stocks.
[
0133,0140­
DD,
0246,0245].
There
are
nine
sets
of
comments
that
question
EPA's
legal
authority
to
impose
limits
on
the
sale
and
use
of
pre­
2005
existing
stocks
of
methyl
bromide
[
0214,
0219,
0220,
0223,
0226,
0227,
0231,
0245,
0248].

 
One
commenter
argues
that
EPA
is
legally
required
in
regulating
critical
methyl
bromide
use
to
take
into
account
existing
stocks
based
on
the
following
argument
[
0133,
0140­
DD,
0246].
 
The
commenter
states
that
the
proposed
rule
correctly
observes
that
EPA
must
comply
with
the
terms
of
both
Article
2H
of
the
Montreal
Protocol
and
the
related
Decisions
of
the
Parties
pursuant
to
that
article,
and
that
the
provisions
of
the
Protocol
and
its
Decisions
are
incorporated
into,
and
become
substantive
provisions,
of
the
Clean
Air
Act.
[
0133,
0140­
DD,
0246]
 
The
commenter
then
makes
note
of
the
pertinent
passages
of
Decision
Ex.
I/
3
and
Decision
IX/
6.
Decision
Ex.
I/
3,
paragraph
5
states:
"
That
each
Party
which
has
an
agreed
critical
use
should
ensure
that
the
criteria
in
paragraph
of
Decision
IX/
6
are
applied
when
licensing,
permitting
or
authorizing
the
use
of
methyl
bromide
and
that
such
procedures
take
into
account
available
stocks."
Decision
IX/
6,
paragraph
(
1)(
b)(
ii)
states
the
condition
that
methyl
bromide
"
is
not
available
in
sufficient
quality
and
quantity
from
existing
stocks
of
banked
or
recycled
methyl
bromide,
also
17
bearing
in
mind
the
developing
countries'
need
for
methyl
bromide."
[
0133,
0140­
DD,
0246]
 
Based
on
the
above,
the
commenter
concludes
that
EPA
is
right
to
acknowledge
that
Protocol
Decisions
Ex.
I/
3
and
IX/
6
require
the
agency
to
reduce
the
upper
limit
on
production
and
consumption
taking
into
account
available
stocks.
[
0133,
0140­
DD,
0246]
 
Similarly,
another
commenter
states
"
EPA
should
enforce
Decision
IX/
6
which
clearly
states
that
stockpiles
of
MB
should
be
deducted
from
eligible
CUEs
available
starting
in
2005
[
0134]

Response
#
10:
EPA's
interpretation
of
its
obligations
with
respect
to
the
Decisions
of
the
Parties
is
set
forth
in
the
preamble
to
the
Notice
of
Proposed
Rulemaking
and
in
sections
two
and
three
of
this
document.
As
discussed
below
in
responses
11­
13,
EPA
concludes
that
the
appropriate
level
of
stocks
utilization
is
set
forth
in
Decision
Ex.
I/
3(
1),
which
establishes
a
critical
use
level
of
35%
but
permits
production
and
consumption
of
only
30%.
Paragraph
(
1)
of
Decision
Ex.
I/
3,
read
in
conjunction
with
paragraph
(
2)
of
the
same
Decision,
specifies
the
amount
of
the
critical
use
level
for
2005
that
should
be
met
from
stocks.
Paragraph
(
1)
establishes
a
critical
use
level
of
35%
of
baseline
but
permits
production
and
consumption
of
only
30%.
Paragraph
(
2)
explains
that
the
difference
is
to
be
made
up
by
using
available
stocks.
In
other
words,
the
amount
of
the
United
States'
2005
critical
use
level
that
should
be
met
from
stocks
is
1,283,214
kilograms,
i.
e.,
an
amount
equivalent
to
5%
of
baseline.
In
addition,
EPA
disagrees
with
the
commenter's
assumption
that
all
stocks
that
are
not
specifically
designated
for
export
to
developing
countries
are
available
for
critical
uses.
For
example,
there
may
be
stocks
in
the
U.
S.
for
quarantine
and
pre­
shipment
uses
or
stocks
held
by
another
entity
for
a
non­
critical
use
during
their
transition
to
alternatives.
In
addition,
the
U.
S.
is
a
global
supplier
of
methyl
bromide
and
existing
inventories
may
be
tagged
for
critical
uses
in
other
developed
countries.

 
Two
commenters
emphasize
the
need
for
the
cap
on
US
production
and
consumption
for
critical
uses
for
2005
of
7,659
metric
tons
to
be
adjusted
downward
[
0133,
0134,
0140­
DD].
 
These
commenters
both
support
EPA's
proposal
to
reduce
the
cap
on
production
and
consumption
to
reflect
the
amount
of
methyl
bromide
stocks
[
0133,
0134,
0140­
DD,
0246].
Indeed,
in
the
words
of
one
of
the
commenters,
"
Protocol
Decisions
Ex.
I/
3
and
IX/
6,
and
the
Clean
Air
Act,
require
the
agency
to
reduce
allowable
production
in
2005
from
the
upper
limit
number
of
7,659
metric
tons
to
account
for
available
stocks."
[
0246]
At
the
same
time,
however,
this
commenter
contends
that
EPA
has
failed
to
properly
reduce
the
amount
of
production
and
consumption
allowed
in
2005
to
account
for
available
stocks
by
having
conjured
up
a
set
of
illegal
factors
to
reduce
the
stock
amount
deemed
"
available"
[
0246].
 
Another
reason
given
by
one
of
the
commenters
is
that
if
the
amount
for
critical
uses
for
the
US
for
2005
is
reduced
(
as
this
commenter
has
argued
18
that
it
should
be),
then
the
cap
on
production
and
consumption
also
needs
to
be
reduced
so
that
it
does
not
exceed
the
critical
uses
amount
[
0140­
DD].

Response
#
11:
As
discussed
below
in
response
12
and
13,
Paragraph
(
1)
of
Decision
Ex.
I/
3,
read
in
conjunction
with
paragraph
(
2)
of
the
same
Decision,
specifies
the
amount
of
the
critical
use
level
for
2005
that
should
be
met
from
stocks.
Paragraph
(
1)
establishes
a
critical
use
level
of
35%
of
baseline
but
permits
production
and
consumption
of
only
30%.
Paragraph
(
2)
explains
that
the
difference
is
to
be
made
up
by
using
available
stocks.
In
other
words,
the
amount
of
the
United
States'
2005
critical
use
level
that
should
be
met
from
stocks
is
1,283,214
kilograms,
i.
e.,
an
amount
equivalent
to
5%
of
baseline.
EPA
is
allocating
CUAs
in
the
amount
of
new
production
authorized
by
the
Parties
in
Decision
Ex.
I/
3,
while
making
up
the
difference
between
that
level
(
30%
of
baseline)
and
the
total
critical
use
level
(
35%
of
baseline)
by
allocating
CSAs
in
an
amount
equal
to
5%
of
baseline.
If
an
entity
does
not
have
sufficient
CSAs
to
cover
the
amount
of
stocks
it
wishes
to
sell
for
critical
uses,
it
has
two
options.
First,
the
entity
may
buy
CSAs
from
another
CSA
holder,
assuming
there
is
a
willing
seller.
Second,
the
entity
may
obtain
CSAs
from
EPA
in
exchange
for
retiring
an
equal
number
of
CUAs.
If
the
entity
pursues
the
first
option,
the
total
amount
of
CSAs
held
by
all
entities
remains
unchanged.
If
the
entity
pursues
the
second
option,
the
increase
in
the
total
amount
of
CSAs
will
be
offset
by
a
corresponding
decrease
in
the
total
amount
of
CUAs.
In
that
instance,
the
resulting
decrease
in
the
allowable
level
of
production
will
ensure
that
the
U.
S.
does
not
exceed
the
35%
cap
on
total
critical
use.
With
regard
to
the
comment
suggesting
that
EPA
adjust
the
total
critical
use
level
for
2005,
EPA
has
not
received
any
new
information
that
would
warrant
such
an
adjustment.

 
One
commenter
argues
that
there
is
no
legal
basis
for
EPA
to
adjust
the
cap
on
US
production
and
consumption
for
2005
downward
from
7,659
metric
tons
[
0245].
 
First,
this
commenter
contends
that
there
is
nothing
in
paragraph
1
of
Decision
Ex.
I/
3
that
requires
the
7,659
metric
tons
to
be
adjusted
downward.
Second,
according
to
this
commenter,
paragraph
2
of
Decision
Ex.
I/
3
only
requires
that
available
stocks
"
be
used
to
make
up
the
difference
between
7,659
and
8,942
metric
tons,
not
that
the
level
of
production
and
consumption
authorized
in
the
earlier
paragraph
must
be
lowered
to
make
use
of
all
stocks
determined
to
be
`
available'".
Finally,
this
commenter
argues
that
the
phrase
in
paragraph
5
of
Decision
Ex.
I/
3
" 
and
that
such
procedures
take
into
account
available
stocks"
does
not
override
paragraphs
1
and
2,
and
cannot
provide
a
basis
for
lowering
the
permitted
level
of
production
and
consumption.
[
0245]

Response
#
12:
The
U.
S.
has
two
obligations
under
Article
2H
and
Decision
Ex
I/
3
regarding
amounts
of
material
made
available
for
critical
uses
in
2005.
One,
the
U.
S.
can
not
exceed
the
35%
cap
on
critical
uses,
subject
to
further
agreements
by
the
Parties.
Two,
the
U.
S.
can
not
exceed
a
30%
cap
on
new
production
for
the
exemption.
EPA
is
ensuring
compliance
with
both
obligations
by
allocating
CUAs
in
an
amount
equal
to
30%
of
baseline
and
CSAs
in
an
amount
equal
to
5%
of
19
baseline.
In
order
to
provide
flexibility
to
the
regulated
community,
EPA
proposed
and
is
finalizing
a
provision
that
allows
an
entity
to
receive
additional
CSAs
from
EPA.
However,
to
ensure
that
the
total
number
of
CUAs
and
CSAs
does
not
exceed
35%
of
baseline,
an
entity
that
wishes
to
receive
additional
CSAs
from
EPA
must
retire
an
equivalent
amount
of
CUAs.
In
evaluating
the
issue
of
the
amount
of
the
critical
use
level
for
2005
that
should
be
met
from
stocks,
EPA
considered
comments
received
and
the
following
statements
in
Decision
Ex.
I/
3.
Decision
Ex
I/
3(
1)
permits
a
level
of
production
and
consumption
equal
to
30%
of
the
1991
baseline
and
establishes
an
agreed
critical
use
level
equal
to
35%
of
the
1991
baseline.
With
regard
to
drawdown
from
existing
inventory,
Decision
Ex.
I/
3(
2)
states:
"
That
a
Party
with
a
critical­
use
exemption
level
in
excess
of
permitted
levels
of
production
and
consumption
for
critical
uses
is
to
make
up
any
such
difference
between
those
levels
by
using
quantities
of
methyl
bromide
from
stocks
that
the
Party
has
recognized
to
be
available."
The
availability
of
stocks
is
also
addressed
in
Decision
Ex.
I/
3(
5),
which
states:
"
That
each
Party
which
has
an
agreed
critical
use
should
ensure
that
the
criteria
in
paragraph
1
of
decision
IX/
6
are
applied
when
licensing,
permitting
or
authorizing
the
use
of
methyl
bromide
and
that
such
procedures
take
into
account
available
stocks.
In
acting
in
accordance
with
Decision
Ex.
I/
3,
EPA
looks
to
Paragraph
(
3)
of
that
Decision,
which
states
that
a
Party
"
shall
prohibit"
the
use
of
stocks
when
the
usage
of
stocks
combined
with
production
and
consumption
exceeds
the
total
level
of
critical
uses
agreed
to
by
the
Parties,
and
to
Paragraph
(
2)
of
that
Decision,
which
states
that
a
Party
with
a
use
exemption
exceeding
allowable
production
and
consumption
"
is
to
make
up"
any
such
difference
by
using
stocks
recognized
to
be
available.
Additionally,
Paragraph
(
5)
of
Decision
Ex.
I/
3
states
that
Parties
should
ensure
that
Decision
IX/
6'
s
criteria
are
applied,
and
Decision
IX/
6
states
that
production
and
consumption
should
not
be
permitted
where
stocks
are
recognized
to
be
available.
Taking
into
account
the
language
of
Decision
Ex.
I/
3'
s
first
three
Paragraphs,
and
the
fact
that
the
fifth
Paragraph
is
hortatory,
EPA
concludes
that
the
appropriate
level
of
stocks
utilization
is
set
forth
in
Decision
Ex.
I/
3(
1),
which
establishes
a
critical
use
level
of
35%
but
permits
production
and
consumption
of
30%.
Paragraph
(
1)
of
Decision
Ex.
I/
3,
read
in
conjunction
with
paragraph
(
2)
of
the
same
Decision,
specifies
the
amount
of
the
critical
use
level
for
2005
that
should
be
met
from
stocks.
Paragraph
(
1)
establishes
a
critical
use
level
of
35%
of
baseline
but
permits
production
and
consumption
of
30%.
Paragraph
(
2)
explains
that
the
difference
is
to
made
up
by
using
available
stocks.
Therefore,
the
amount
of
the
United
States'
2005
critical
use
level
that
should
be
met
from
stocks
is
1,283,214
kilograms,
i.
e.,
an
amount
equivalent
to
5%
of
baseline.
EPA's
conclusion
is
consistent
with
Paragraph
(
5)
of
Decision
Ex.
I/
3.
That
Paragraph
requests
each
Party
with
an
agreed
critical
use
to
take
into
account
available
stocks
when
authorizing
the
use
of
methyl
bromide.
Given
the
language
in
Paragraphs
(
1)
and
(
2)
of
Decision
Ex.
I/
3,
EPA
interprets
Paragraph
(
5)'
s
language
as
meaning
that
the
U.
S.
should
not
authorize
critical
use
exemptions
without
including
provisions
addressing
drawdown
from
stocks
for
critical
uses.
EPA
is
acting
consistently
with
Paragraph
(
5)
by
establishing
requirements
governing
the
20
sale
of
pre­
phaseout
inventories
for
approved
critical
uses.
In
addition,
EPA
is
taking
into
account
stocks
through
the
trading
provisions
outlined
in
section
in
today's
rulemaking
(
section
V.
G
of
the
preamble),
which
allow
critical
use
allowances
to
be
converted
into
critical
stock
allowances.
EPA
had
proposed
to
undertake
an
independent
analysis
of
the
amount
to
come
from
stocks
and
to
adjust
the
authorized
level
of
new
production
and
consumption
for
critical
uses
by
the
amount
of
"
available"
stocks
determined
through
this
analysis.
The
methodology
proposed
for
this
analysis
was
elaborated
in
the
NPRM
and
also
in
a
Technical
Support
Document
that
can
be
obtained
from
the
rulemaking
docket.
Although
EPA
believes
this
approach
has
merit
and
could
be
used
in
the
future,
it
is
not
necessary
for
the
2005
allocation
of
CUAs
and
CSAs.
EPA
also
sought
comment
on
an
alternative
approach:
"
For
the
2005
calendar
year,
the
Agency
could
make
a
determination
that
the
amount
of
methyl
bromide
available
from
existing
stocks
is
simply
based
on
the
difference
between
the
limit
on
methyl
bromide
for
critical
uses
(
8,942
metric
tons)
and
the
limit
on
new
production
and
import
(
7,659
metric
tons)
in
the
Decision
Ex.
I/
3."
69
FR
52375.
This
is
essentially
the
approach
adopted
in
today's
final
rule.
EPA
is
clarifying,
however,
that
the
appropriate
level
of
stock
drawdown
for
critical
uses
in
2005
is
set
out
in
Decision
Ex.
I/
3.

 
In
five
sets
of
comments,
the
argument
is
made
that
Title
VI,
or
more
specifically
Section
604(
d)(
6),
of
the
Clean
Air
Act
does
not
provide
EPA
with
the
legal
authority
to
control
existing
stocks
[
0214,
0219,
0227,
0231,
0245]
 
Section
604(
d)(
6)
is
identified
by
one
commenter
as
the
only
provision
of
the
Clean
Air
Act
that
addresses
critical
uses
of
methyl
bromide
[
0245].
 
All
five
commenters
state
that
Section
604(
d)(
6)
permits
EPA
to
only
regulate
"
production,
consumption
and
importation"
for
critical
use,
and
makes
no
mention
of
existing
stocks.
Further,
they
state
that
existing
stocks
do
not
fall
under
the
definition
of
production,
consumption
or
importation.
Specifically
with
regards
to
the
term
"
consumption,"
as
noted
by
two
commenters
[
0214,
0219],
consumption
does
not
mean
the
"
use"
of
a
controlled
substance,
but
rather
is
defined
as
the
formula:
production
+
imports
 
exports
of
controlled
substances.
[
0214,
0219,
0227,
0231,
0245]
 
One
commenter
contends
that,
in
excluding
mention
of
"
reuse"
and
"
recycling"
in
Section
604(
d)(
6),
"
Congress
demonstrated
its
intention
not
to
extend
CAA
regulation
of
methyl
bromide
to
post­
production
activities."
[
0245]

 
Three
commenters
state
that
Article
2H(
5)
of
the
Montreal
Protocol
does
not
give
EPA
the
legal
authority
to
control
existing
stocks
[
0227,
0231,
0245].
 
One
commenter
observes
that
Article
2H(
5)
of
the
Montreal
Protocol
is
the
provision
from
which
authority
to
control
existing
stocks
might
arise
[
0245].
 
All
three
commenters
make
the
point
that
Article
2H(
5)
of
the
Montreal
Protocol
refers
only
to
allowing
"
production
and
consumption"
necessary
to
satisfy
critical
uses
and
says
nothing
about
existing
stocks.
[
0227,
0231,
0245]
21
 
The
argument
is
also
made
by
one
commenter
that
it
is
not
possible
to
stretch
the
definitions
of
"
production"
and
"
consumption,"
as
given
in
the
Montreal
Protocol,
to
apply
to
existing
stocks
[
0245].
 
One
commenter
goes
on
further
to
say
that,
given
the
absence
of
any
mention
of
existing
stocks
in
Article
2H(
5),
"
EPA
is
free
to
interpret
the
Protocol
and
the
Decisions
of
the
Parties
without
imposing
restrictions
on
the
use
of
existing
stocks"
[
0231]

 
Five
sets
of
comments
argue
that
EPA
incorrectly
assumes
that
it
has
legal
authority
to
control
existing
stocks
based
on
its
assertion
that,
under
the
Clean
Air
Act,
the
agency
must
comply
with
the
terms
of
both
Article
2H
of
the
Montreal
Protocol
and
the
related
Decisions
of
the
Parties
pursuant
to
that
Article
[
0214,
0219,
0223,
0231,
0245].
 
Three
commenters
point
out
that
the
Clean
Air
Act's
definition
of
the
Montreal
Protocol
does
not
make
any
reference
to
"
Decisions".
The
Montreal
Protocol
is
defined
in
the
Clean
Air
Act
to
mean
"
the
Montreal
Protocol
on
Substances
that
Deplete
the
Ozone
Layer,
including
adjustments
adopted
by
the
Parties
thereto
and
amendments
that
have
entered
into
force."
42
U.
S.
C.
7671(
8).
Further,
these
commenters
state
that
Decisions
are
not
binding
on
the
Parties
to
the
Montreal
Protocol
whereas,
by
the
express
terms
of
the
Clean
Air
Act,
the
Montreal
Protocol
and
its
amendments
and
adjustments
are
binding
as
a
matter
of
law.
It
is
argued
that,
as
a
consequence,
the
agency
is
not
compelled
as
a
matter
of
law
to
abide
by
the
provisions
of
these
Decisions.
[
0214,
0219,
0223]
 
In
three
sets
of
comments,
it
is
argued
that
EPA
is
wrong
to
contend
that
it
must
comply
with
Decision
Ex.
I/
3,
which
makes
mention
of
controlling
existing
stocks,
based
on
the
fact
that
this
Decision
must
be
considered
a
"
subsequent
consensus
agreement"
of
the
Parties
in
accordance
with
Article
31
of
the
Vienna
Convention
on
the
Law
of
Treaties
[
0219,
0223,
0245].
One
commenter
argues
that,
at
most,
Decisions
"
may
be
used
to
interpret
existing
requirements
in
the
Protocol.
They
cannot
be
used
to
substantively
change
these
requirements."
[
0245]

Response
#
13:
Section
604(
d)(
6)
of
the
CAAA
says:
"
To
the
extent
consistent
with
the
Montreal
Protocol,
the
Administrator,
after
notice
and
the
opportunity
for
public
comment,
and
after
consultation
with
other
departments
or
instrumentalities
of
the
Federal
Government
having
regulatory
authority
related
to
methyl
bromide,
including
the
Secretary
of
Agriculture,
may
exempt
the
production,
importation,
and
consumption
of
methyl
bromide
for
critical
uses."
Article
2H
(
5)
of
the
Montreal
Protocol
provides
that
the
2005
methyl
bromide
phaseout
shall
not
apply
"
to
the
extent
the
Parties
decide
to
permit
the
level
of
production
or
consumption
that
is
necessary
to
satisfy
uses
agreed
by
them
to
be
critical
uses."
Both
Section
604(
d)(
6)
and
Section
614(
b)
of
the
CAA
address
the
relationship
between
the
Montreal
Protocol
and
actions
taken
under
the
CAA's
stratospheric
ozone
provisions.
Section
604(
d)(
6)
addresses
critical
uses
specifically,
22
while
Section
614(
b)
is
more
general
in
scope.
Section
604(
d)(
6)
states
that
"
to
the
extent
consistent
with
the
Montreal
Protocol,"
the
Administrator
may
exempt
methyl
bromide
for
critical
uses.
Section
614(
b)
states:
"
This
title
as
added
by
the
Clean
Air
Act
Amendments
of
1990
shall
be
construed,
interpreted,
and
applied
as
a
supplement
to
the
terms
and
conditions
of
the
Montreal
Protocol,
as
provided
in
Article
2,
paragraph
11
thereof,
and
shall
not
be
construed,
interpreted,
or
applied
to
abrogate
the
responsibilities
or
obligations
of
the
United
States
to
implement
fully
the
provisions
of
the
Montreal
Protocol.
In
the
case
of
conflict
between
any
provision
of
this
title
and
any
provision
of
the
Montreal
Protocol,
the
more
stringent
provision
shall
govern."
EPA
must
take
into
account
not
only
the
text
of
Article
2H
but
also
the
related
Decisions
of
the
Protocol
Parties
that
interpret
that
text.
Under
customary
international
law,
as
codified
in
the
1969
Vienna
Convention
on
the
Law
of
Treaties
(
8
International
Legal
Materials
679
(
1969))
both
the
treaty
text
and
the
practice
of
the
parties
in
interpreting
that
text
form
the
basis
for
its
interpretation.
Although
the
United
States
is
not
a
party
to
the
1969
Convention,
the
United
States
has
regarded
it
since
1971
as
"
the
authoritative
guide
to
current
treaty
law
and
practice."
See
Secretary
of
State
William
D.
Rodgers
to
President
Richard
Nixon,
October
18,
1971,
92d
Cong.,
1st
Sess.,
Exec.
L
(
Nov.
22,
1971).
Specifically,
Article
31(
1)
of
the
Vienna
Convention
provides
that
"[
a]
treaty
shall
be
interpreted
in
good
faith
in
accordance
with
the
ordinary
meaning
to
be
given
to
the
terms
of
the
treaty
in
their
context
and
in
light
of
its
object
and
purpose."
Article
31(
3)
goes
on
to
provide
that
"[
t]
here
shall
be
taken
into
account,
together
with
the
context:
(
a)
any
subsequent
agreement
between
the
parties
regarding
the
interpretation
of
the
treaty
or
the
application
of
its
provisions."
In
the
current
circumstances
Decisions
of
the
Parties
can
be
construed
as
subsequent
consensus
agreements
among
the
Parties
to
the
Montreal
Protocol,
including
the
United
States,
regarding
the
interpretation
and
application
of
the
Protocol.
In
accordance
with
Article
2H(
5),
the
Parties
have
issued
several
Decisions
pertaining
to
the
critical
use
exemption.
At
their
Ninth
Meeting
in
1997,
the
Parties
issued
Decision
IX/
6
which
established
criteria
applicable
to
the
critical
use
exemption.
In
paragraph
1
of
Decision
IX/
6,
the
Parties
agreed
as
follows:
(
a)
That
a
use
of
methyl
bromide
should
qualify
as
"
critical"
only
if
the
nominating
Party
determines
that:
(
i)
The
specific
use
is
critical
because
the
lack
of
availability
of
methyl
bromide
for
that
use
would
result
in
a
significant
market
disruption;
and
(
ii)
There
are
no
technically
and
economically
feasible
alternatives
or
substitutes
available
to
the
user
that
are
acceptable
from
the
standpoint
of
environment
and
health
and
are
suitable
to
the
crops
and
circumstances
of
the
nomination;
(
b)
That
production
and
consumption,
if
any,
of
methyl
bromide
for
critical
uses
should
be
permitted
only
if:
(
i)
All
technically
and
economically
feasible
steps
have
been
taken
to
minimize
the
critical
use
and
any
associated
emission
of
methyl
bromide;
23
(
ii)
Methyl
bromide
is
not
available
in
sufficient
quantity
and
quality
from
existing
stocks
of
banked
or
recycled
methyl
bromide,
also
bearing
in
mind
the
developing
countries'
need
for
methyl
bromide;
(
iii)
It
is
demonstrated
that
an
appropriate
effort
is
being
made
to
evaluate,
commercialize
and
secure
national
regulatory
approval
of
alternatives
and
substitutes,
taking
into
account
the
circumstances
of
the
nomination
.
.
.
Non­
Article
V
[
Developed
country]
parties
must
demonstrate
that
research
programmes
are
in
place
to
develop
and
deploy
alternatives
and
substitutes.
.
.
The
Parties
also
agreed
in
Decision
IX/
6
that
the
technical
panels
(
discussed
below)
that
reviews
nominations
and
makes
recommendations
to
the
Parties
regarding
approval
of
critical
use
exemptions,
would
base
its
review
and
recommendations
on
the
criteria
in
paragraphs
(
a)(
ii)
and
(
b).
The
criterion
in
paragraph
(
a)(
i)
was
not
subject
to
review
by
this
technical
panel.
At
the
First
Extraordinary
Meeting
of
the
Parties
in
March
of
2004,
the
Parties
issued
several
decisions
that
address
the
agreed
critical
uses,
the
allowable
levels
of
new
production
and
consumption
for
critical
uses,
the
conditions
for
granting
critical
use
exemptions,
and
reporting
obligations.
Decision
Ex.
I/
3
covers
the
agreed
critical
uses
and
allowable
levels
of
new
production
and
consumption
for
the
year
2005.
This
Decision
includes
the
following
terms:
1.
For
the
agreed
critical
uses
set
forth
in
annex
II
A
to
the
report
of
the
First
Extraordinary
Meeting
of
the
Parties
to
the
Montreal
Protocol
for
each
Party,
to
permit,
subject
to
the
conditions
set
forth
in
decision
Ex.
I/
4,
the
levels
of
production
and
consumption
set
forth
in
annex
II
B
to
the
present
report
which
are
necessary
to
satisfy
critical
uses,
with
the
understanding
that
additional
levels
and
categories
of
uses
may
be
approved
by
the
Sixteenth
Meeting
of
the
Parties
in
accordance
with
decision
IX/
6;
2.
That
a
Party
with
a
critical­
use
exemption
level
in
excess
of
permitted
levels
of
production
and
consumption
for
critical
uses
is
to
make
up
any
such
difference
between
those
levels
by
using
quantities
of
methyl
bromide
from
stocks
that
the
Party
has
recognized
to
be
available;
3.
That
a
Party
using
stocks
under
paragraph
2
above
shall
prohibit
the
use
of
stocks
in
the
categories
set
forth
in
annex
II
A
to
the
report
of
the
First
Extraordinary
Meeting
of
the
Parties
to
the
Montreal
Protocol
when
amounts
from
stocks
combined
with
allowable
production
and
consumption
for
critical
uses
exceed
the
total
level
for
that
Party
set
forth
in
annex
II
A
to
the
present
report;
4.
That
Parties
should
endeavor
to
allocate
the
quantities
of
methyl
bromide
recommended
by
the
Technology
and
Economic
Assessment
Panel
as
listed
in
annex
II
A
to
the
report
of
the
First
Extraordinary
Meeting
of
the
Parties;
5.
That
each
Party
which
has
an
agreed
critical
use
should
ensure
that
the
criteria
in
paragraph
1
of
decision
IX/
6
are
applied
when
licensing,
permitting
or
authorizing
the
use
of
methyl
bromide
and
that
such
procedures
take
into
account
available
stocks.
Each
Party
is
requested
to
24
report
on
the
implementation
of
the
present
paragraph
to
the
Ozone
Secretariat;
The
agreed
critical
uses
and
allowable
levels
of
production
and
consumption
are
set
forth
in
annexes
to
the
Parties'
report.
Decision
Ex
I/
4
addresses
the
conditions
for
granting
and
reporting
critical­
use
exemption
for
methyl
bromide.
Decisions
IX/
6,
Ex.
I/
3,
and
Ex.
I/
4
are
subsequent
consensus
agreements
of
the
Parties
that
address
the
interpretation
and
application
of
the
critical
use
provision
in
Article
2H(
5)
of
the
Protocol.
For
example,
Decision
Ex.
I/
3
reflects
a
decision
called
for
by
the
text
of
Article
2H(
5)
where
the
parties
are
directed
to
"
decide
to
permit
the
level
of
production
or
consumption
that
is
necessary
to
satisfy
uses
agreed
by
them
to
be
critical
uses."
In
today's
final
rule,
EPA
is
following
the
terms
of
Decisions
IX/
6,
Ex.
I/
3,
and
Ex.
I/
4.
This
will
ensure
consistency
with
the
Montreal
Protocol
and
satisfy
the
requirements
of
Section
604(
d)
(
6)
and
Section
614(
b)
of
the
CAA.
For
further
background
on
this
issue,
please
see
the
NPRM,
69
FR
52369­
52372
(
August
25,
2004).
In
finalizing
the
provisions
on
access
to
stocks,
EPA
considered
comments
received
and
the
language
of
Decision
Ex
I/
3(
3),
which
states:
"
That
a
Party
using
stocks
under
paragraph
2
above
shall
prohibit
the
use
of
stocks
in
the
categories
set
forth
in
annex
II
A
to
the
report
of
the
First
Extraordinary
Meeting
of
the
Parties
to
the
Montreal
Protocol
when
amounts
from
stocks
combined
with
allowable
production
and
consumption
for
critical
uses
exceed
the
total
level
for
that
Party
set
forth
in
annex
II
A
to
the
present
report."
While
Congress,
in
the
Clean
Air
Act,
generally
mandated
that
production
and
consumption
of
ozone­
depleting
substances
be
phased
out
across
the
board,
regardless
of
use,
the
Act
does
contain
certain
provisions,
including
section
604(
d)(
6),
that
authorize
EPA
to
provide
exceptions
on
the
basis
of
use.
Thus,
section
604(
d)(
6)
is
one
of
the
provisions
of
the
Clean
Air
Act
where
use
is
clearly
at
issue.
In
today's
final
rule,
EPA
is
imposing
narrowly
tailored
use
restrictions
as
a
condition
of
obtaining
new
production
and
import.
EPA
believes
that
section
604(
d)(
6)
mandates
this
result.
In
section
604(
d)(
6),
Congress
provided
EPA
authority
to
exempt
production
and
import
of
methyl
bromide
for
critical
uses,
but
only
"
to
the
extent
consistent
with
the
Protocol."
The
use
restrictions
in
today's
final
rule
are
necessary
to
ensure
that
total
usage
for
critical
uses
does
not
exceed
the
limit
agreed
to
by
the
Parties
in
implementing
the
critical
use
provision
in
Article
2H
of
the
Protocol.
The
commenters
further
argue
that
EPA
cannot
rely
on
Decision
Ex
I/
3
to
justify
restrictions
on
use
of
stocks.
They
state
that
while
Decisions
may
be
used
to
interpret
existing
requirements
in
the
Protocol,
they
cannot
be
used
to
substantively
change
those
requirements.
However,
EPA
is
not
suggesting
that
Decision
Ex
I/
3
substantively
changed
the
requirements
of
Article
2H.
Article
2H
establishes
a
prohibition
on
the
production
and
consumption
of
methyl
bromide,
but
states
that
the
prohibition
shall
not
apply
"
to
the
extent
the
Parties
decide
to
permit
the
level
of
production
and
consumption
that
is
necessary
to
satisfy
uses
agreed
by
them
to
be
critical
uses."
The
Parties
have
not
interpreted
Article
2H
in
the
manner
the
commenters
assert.
Instead,
they
understood
the
terminology
referring
to
"
uses
agreed
by
them
to
be
critical
uses"
to
allow
the
Parties
to
tie
the
determinations
of
25
production
and
consumption
to
use.
Under
international
law,
this
interpretation
and
practice
of
the
Parties
may,
in
the
current
situation,
be
read
to
be
an
accurate
interpretation
of
Article
2H's
language.
Although
Decision
Ex.
I/
3
focuses
on
regulating
production
and
consumption,
the
Parties
could
reasonably
set
related
conditions
on
agreeing
to
production
and
consumption
at
a
particular
level.
Therefore,
the
stock
restrictions
are
an
integral
part
of
the
Parties'
decision
regarding
the
level
of
production
and
consumption
necessary
to
satisfy
critical
uses.
The
commenters
further
characterize
the
restrictions
on
access
to
stocks
proposed
in
the
NPRM
as
"
an
attempt
by
the
Agency
to
bypass
the
Treaty
Clause
of
the
U.
S.
Constitution
by
unilaterally
amending
the
Montreal
Protocol
through
a
rulemaking,
without
the
advice
and
consent
of
the
Senate."
EPA
rejects
this
characterization.
Article
2H
explicitly
assigns
to
the
Parties
the
task
of
deciding
what
level
of
production
and
consumption
"
is
necessary
to
satisfy
uses
agreed
by
them
to
be
critical
uses..."
Therefore,
EPA
looks
to
the
Parties'
Decisions
to
provide
the
details
of
the
exemption
authorized
in
Article
2H.
In
Decision
Ex
I/
3,
the
Parties
decided
what
level
of
production
and
consumption
was
necessary
given
certain
assumptions
about
stocks.
Accordingly,
in
compliance
with
Article
2H,
this
final
rule
addresses
both
production
and
consumption
and
the
use
of
stocks.
One
commenter
indicated
that
Congress
did
not
include
the
words
"
reuse"
ore
"
recycle"
in
604(
d)(
6)
concluded
that
Congress
must
not
have
intended
to
regulate
use.
However,
in
authorizing
EPA
to
exempt
production
of
methyl
bromide
for
"
critical"
uses,
Congress
clearly
intended
that
EPA
undertake
some
examination
of
which
uses
qualify
as
"
critical."
Thus,
the
commenter's
statement
that
Congress
did
not
intend
to
extend
regulation
of
methyl
bromide
to
"
post­
production
activities"
is
incorrect.
All
critical
use
of
methyl
bromide
occurs
"
post­
production."
In
addition,
reuse
and
recycling
of
methyl
bromide
is
not
a
mature
technology
today
and
certainly
was
not
a
mature
technology
at
the
time
of
the
1998
amendments.
Thus,
it
is
unlikely
that
Congress
would
have
referred
to
these
concepts
in
adding
specific
methyl
bromide
provisions
to
the
Clean
Air
Act.

 
One
commenter
disagrees
with
EPA's
assertion
that
it
has
legal
authority
to
restrict
the
sale
and
use
of
methyl
bromide
stocks
because
other
sections
of
the
Clean
Air
Act
allow
it
to
restrict
the
use
of
other
controlled
substances
[
0245].
 
This
commenter
states
that
"
by
including
`
use'
in
other
sections
of
the
CAA
but
not
in
604(
d)(
6),
Congress
demonstrated
purposefully
its
intent
to
deny
the
Agency
authority
to
control
or
prohibit
the
sale,
distribution
or
use
of
stocks
when
setting
critical
use
exemptions"
of
methyl
bromide
[
0245].

Response
#
14:
In
the
NPRM,
EPA
referenced
other
sections
of
the
Clean
Air
Act
that
restrict
the
use
of
ozone
depleting
substances
to
make
the
point
that
it
is
incorrect
to
view
the
Clean
Air
Act
as
exclusively
restricting
production
and
import
of
ozone
depleting
substances.
The
commenter
refers
to
the
maxim
"
expression
unius
est
exclusion
alterius"
("
the
expression
of
one
thing
is
the
exclusion
of
another"),
and
quotes
a
Supreme
Court
opinion
for
the
principle
that
"
where
Congress
includes
particular
language
in
one
section
of
a
statute
but
omits
it
in
26
another
section
of
the
same
Act,
it
is
generally
presumed
that
Congress
acts
intentionally
and
purposely
in
the
disparate
inclusion
or
exclusion."
Russello
v.
United
States,
464
U.
S.
16,
23
(
1983).
However,
this
principle
does
not
apply
here.
Congress
included
language
regarding
use
both
in
other
sections,
such
as
section
605
and
section
608,
and
in
section
604(
d)(
6).
In
addition,
the
provisions
on
access
to
stocks
in
today's
final
rule,
issued
under
section
604(
d)(
6)
of
the
CAA,
are
not
comparable
to
the
use
restrictions
issued
pursuant
to,
for
example,
section
608,
which
concerns
the
use
and
disposal
of
ozone
depleting
substances
during
the
service,
repair,
and
disposal
of
refrigeration
equipment.
In
today's
final
rule,
EPA
is
restricting
access
to
stocks
for
uses
that
obtain
new
production.
EPA
is
not
creating
restrictions
under
the
authority
of
section
604(
d)(
6)
except
as
a
condition
of
the
critical
use
exemption.

 
Six
commenters
assert
that
it
would
be
wrong
of
EPA
to
restrict
the
sale
and
use
of
stocks
that
were
produced
or
imported
in
accordance
with
the
methyl
bromide
phase­
out
guidelines
of
the
Montreal
Protocol
[
0140­
JN,
0140­
DG,
0205,
0220,
0245]
 
One
commenter
backs
up
this
assertion
by
arguing
that
in
"
approving
a
given
level
of
production,
the
Parties
implicitly
approve
any
environmental
effects
that
might
be
associated
with
use
of
the
approved
level
of
production.
Thus,
a
subsequent
restriction
on
use
of
product
legitimately
produced
by
expending
production
and
consumption
allowances
essentially
amounts
to
a
retroactive
change
in
allowed
levels
of
production."
[
0245]

Response
#
15:
EPA
disagrees
with
the
commenter's
assumption
that
in
"
approving
a
given
level
of
production
the
Parties
implicitly
approve
any
environmental
effects
that
might
be
associated
with
use
of
the
approved
level
of
production."
The
Parties
have
on
multiple
occasions
urged
measures
to
minimize
the
environmental
impact
of
legally­
produced
ozone­
depleting
substances.
For
example,
in
Decision
VI/
11,
regarding
quarantine
and
preshipment
applications
of
methyl
bromide,
the
Parties
stated
that,
in
applying
the
quarantine
and
preshipment
definitions,
"
Parties
are
urged
to
minimize
emissions
and
use
of
methyl
bromide
through
containment
and
recovery
and
recycling
methodologies
to
the
extent
possible."
Decision
VI/
11(
1)(
c).
Other
Decisions
in
the
same
vein
include
Decision
IV/
24,
Decision
XI/
6,
and
Decision
X/
7.
In
Decision
IV/
24,
regarding
recovery,
reclamation
and
recycling
of
controlled
substances,
the
Parties
agreed
"
to
urge
all
the
Parties
to
take
all
practicable
measures
to
prevent
releases
of
controlled
substances
into
the
atmosphere."
Such
measures
were
to
include
recovery
of
controlled
substances
during
the
servicing
and
maintenance,
and
prior
to
the
disposal,
of
certain
types
of
equipment,
for
the
purpose
of
recycling,
reclamation,
or
destruction;
minimization
of
refrigerant
leakage
during
manufacture,
installation,
operation
and
servicing
of
commercial
and
industrial
air­
conditioning
and
refrigeration
systems;
and
destruction
of
unneeded
ozone­
depleting
substances
"
where
economically
feasible
and
environmentally
appropriate."
Decision
IV/
24(
4).
Similarly,
in
Decision
XI/
16
the
Parties
noted
"
that
decision
IV/
24
urges
all
Parties
to
take
all
practicable
measures
to
prevent
releases
of
controlled
substances
into
the
atmosphere"
and
27
requested
that
each
non­
Article
5
Party
submit
a
CFC
management
strategy.
Options
to
be
considered
in
preparing
such
a
strategy
included:
"
Setting
target
dates
for
bans
on
the
refilling
and/
or
the
use
of
refrigeration
and
air­
conditioning
equipment
functioning
on
CFCs"
and
"
Ensuring
that
appropriate
measures
are
taken
for
the
environmentally
safe
and
effective
storage,
management
and
final
disposition
of
recovered
CFCs."
Decision
XI/
16(
1),(
5).
The
preambular
language
to
Decision
X/
7
notes
that
"
in
the
executive
summary
of
its
1998
report,
the
Scientific
Assessment
Panel
identifies
complete
elimination
and
destruction
of
halon­
1211
and
1301
as
the
most
environmentally
beneficial
option
to
enhance
the
recovery
of
the
ozone
layer."
In
that
Decision,
the
Parties
requested
"
all
Parties
to
develop
and
submit
to
the
Ozone
Secretariat
a
national
or
regional
strategy
for
the
management
of
halons,
including
emissions
reduction
and
ultimate
elimination
of
their
use."
Decision
X/
7(
1).
Thus,
approval
of
a
given
level
of
production
does
not
necessarily
imply
acceptance
of
the
environmental
effects
that
might
result
from
such
production.
Further,
EPA
does
not
agree
that
"
a
subsequent
restriction
on
use
of
product
legitimately
produced
by
expending
production
and
consumption
allowances
essentially
amounts
to
a
retroactive
change
in
allowed
levels
of
production."
Today's
final
rule
does
not
assign
new
legal
consequences
to
methyl
bromide
production
that
occurred
prior
to
January
1,
2005.
If
such
production
was
legal
at
the
time
it
occurred
(
e.
g.,
the
producer
had
sufficient
unexpended
allowances),
that
production
remains
legal
under
today's
rule.

 
Six
sets
of
comments
state
that
it
is
unfair
of
EPA
to
completely
shift
its
position
on
the
central
issue
of
the
control
of
existing
stocks
of
methyl
bromide
in
the
proposed
rule
[
0202,
0203,
0206,
0227,
0231,
0245].
 
All
six
commenters
argue
that,
up
until
the
publication
of
the
proposed
rule,
it
was
always
the
position
of
EPA
that
the
use
of
existing
stocks
would
not
be
restricted
[
0202,
0203,
0206,
0227,
0231,
0245].
Three
commenters
give
the
particular
example
of
information
contained
in
a
"
Frequently
Asked
Questions"
section
of
EPA's
"
Methyl
Bromide
Phase­
Out
Web
Site":
"
Question:
Does
the
Clean
Air
Act
restrict
the
use
of
Methyl
Bromide
now
or
after
2005?
Answer:
No."
[
0227,
0231,
0245].
 
Two
commenters
point
out
that,
until
now,
it
was
always
their
understanding
that
the
use
of
existing
stocks
would
be
regulated
by
FIFRA
(
Federal
Insecticide,
Fungicide
and
Rodenticide
Act)
[
0227,
0231].
 
One
commenter
suggests
that
it
would
be
"
arbitrary
and
capricious
for
EPA
to
change
its
position
on
this
central
issue
without
providing
a
factuallygrounded
rational
basis
for
doing
so."
[
0245]

Response
#
16:
The
Frequently
Asked
Questions
document
referred
to
by
the
commenters
is
from
2/
25/
1999.
The
full
answer
to
that
questions
is
"
No.
The
phase
out
applied
to
chemical
production
and
imports,
not
use.
Pesticide
use
is
governed
by
FIFRA
(
Federal
Insecticide,
Fungicide
and
Rodenticide
Act)
in
the
EPA
Office
of
Pesticide
Program)."
While
it
remains
true
that
the
Clean
Air
Act
does
not
directly
restrict
use
of
methyl
bromide,
section
604(
d)(
6)
only
allows
EPA
to
exempt
28
production
of
methyl
bromide
for
critical
uses
"
to
the
extent
consistent
with
the
Montreal
Protocol."
To
ensure
such
consistency,
EPA
is
imposing
a
use
restriction
as
a
condition
of
obtaining
new
production
for
critical
uses.

 
Two
commenters
argue
that
imposing
restrictions
on
the
sale
or
use
of
existing
stocks
of
methyl
bromide
at
this
time
would
constitute
a
"
taking"
under
the
Fifth
Amendment
of
the
US
Constitution
[
0231,
0245].
 
One
commenter
states
that
"
If
the
final
rule
prohibits
the
sale
and
distribution
of
stocks
as
contemplated
in
the
NPRM,
there
will
be
a
significant
reduction
in
value
of
stocks
held
by
suppliers."
[
0245]
 
It
is
also
noted
by
this
same
commenter
that
"
no
vehicle
is
proposed
to
compensate
owners
or
distributors
for
their
losses."
[
0245]

Response
#
17:
EPA
does
not
agree
that
the
restrictions
on
sale
of
stocks
into
the
critical
use
market
in
today's
final
rule
constitute
a
"
taking"
under
the
Fifth
Amendment.
This
rule
does
not
deprive
entities
that
own
stocks
of
methyl
bromide
of
all
economically
beneficial
use
of
such
stocks,
nor
is
it
expected
to
impose
any
substantial
economic
impact
on
such
entities.
This
rule
does
not
require
CSA
holders
or
any
other
entities
to
sell
any
amount
of
methyl
bromide
for
critical
uses.
It
does
restrict
entities
that
own
stocks
of
methyl
bromide
from
selling
such
stocks
for
critical
uses
in
excess
of
the
amount
of
CSAs
held.
However,
EPA
notes
that
there
are
several
domestic
markets
for
methyl
bromide
as
well
as
foreign
markets
(
export
to
developing
countries
and
export
to
meet
the
critical
use
demands
of
developed
countries)
which
are
all
sizable
and
important
markets.
Therefore,
EPA
does
not
understand
why
the
value
of
stocks
would
be
greatly
diminished
given
the
number
of
legal
markets.
Even
if
there
were
a
reduction
in
value
of
stocks
on
the
unrestricted
market
because
of
a
glut
of
material
that
had
been
previously
held
for
CUE
users
now
becoming
available,
economic
theory
would
suggest
that
the
corresponding
scarcity
of
stocks
in
the
critical
use
market
would
lead
to
the
ability
to
charge
a
price
premium
in
the
exemption
market.
This
would
hold
true
unless
the
amount
of
stocks
authorized
for
sale
into
the
critical
use
market
were
equivalent
to
present
demand,
in
which
case
there
would
not
be
a
scarcity
and
ensuing
premium.
In
this
scenario
there
would
clearly
not
be
a
takings
issue
to
begin
with
since
the
regulatory
limit
on
sale
of
stocks
for
critical
uses
would
reflect
the
amount
that
would
have
been
sold
into
that
market
in
the
absence
of
regulation.
29
2.
b.
Factors
in
the
algorithm
Commenter
Organization
Document
ID
Number
David
Doniger
Natural
Resources
Defense
Council
(
NRDC)
0133,
0140
(
transcript
of
public
hearing),
0246
David
McAllister
Great
Lakes
Chemical
Corporation
0138
James
Nicol
Great
Lakes
Chemical
Corporation
0212
Steve
Hensley
USA
Rice
Federation
(
USA
Rice)
0214
Edward
M.
Ruckert
Crop
Protection
Coalition
0219
Daniel
A.
Botts
Florida
Fruit
&
Vegetable
Association
(
FFVA)
0223
Ann
M.
Oxford
Albemarle
Corporation
0226
Courtney
M.
Price
et
al.
American
Chemistry
Council's
Methyl
Bromide
Industry
Panel
0245
Tim
Maniscalo
Dow
AgroSciences
LLC
(
DAS)
0247
John
Sansone
Cardinal
Professional
Products
0248
David
R.
Riggs
Western
Raspberry
Nursery
Consortium
0217
 
One
commenter
argues
that,
based
on
the
language
of
the
Decisions
pursuant
to
Article
2H
of
the
Montreal
Protocol,
EPA
only
has
the
authority
to
deduct
the
D
(
drawdown
of
stocks
through
2004)
and
E1
(
stocks
for
developing
countries)
factors
to
determine
the
amount
of
stock
that
is
"
available"
[
0133,
0145].
This
commenter
claims,
in
reference
to
what
the
commenter
sees
as
a
need
to
reduce
the
cap
on
allowable
production
and
consumption
to
account
for
available
stocks
in
accordance
with
Protocol
Decisions
Ex
I/
3
and
IX/
6
and
the
Clean
Air
Act,
that
"
in
a
transparent
attempt
to
circumvent
these
requirements,
EPA
has
conjured
up
a
set
of
illegal
factors"
to
reduce
the
amount
of
"
available"
stock
[
0246].

Response
#
18:
EPA
is
not
implementing
the
available
stockpile
methodology
in
today's
final
rule
and
therefore
is
not
responding
to
comments
on
the
details
of
the
methodology
described
in
the
proposal.
Should
EPA
utilize
this
methodology
in
future,
EPA
will
consider
these
comments
at
that
time.

 
Five
sets
of
comments
offer
some
qualified
support
for
the
methodology
underlying
the
formula
to
be
used
by
EPA
in
determining
available
stocks
[
0212,
0226,
0245,
0247,
0248].
 
Three
of
these
commenters
note
that
"
EPA's
proposed
formula
includes
most
of
the
terms
that
would
logically
be
necessary
to
calculate
the
amount
of
stocks
that
are
potentially
available"
[
0212,
0226,
0245]
 
One
commenter
"
supports
the
methodology
in
principle."
[
0247]
 
Another
commenter
agrees
with
EPA
that
"
a
top­
down
approach
is
the
most
logical
way
to
determine
available
stocks."
[
0248]
30
Response
#
19:
EPA
is
not
implementing
the
available
stockpile
methodology
in
today's
final
rule
and
therefore
is
not
responding
to
comments
on
the
details
of
the
methodology
described
in
the
proposal.
Should
EPA
utilize
this
methodology
in
future,
EPA
will
consider
these
comments
at
that
time.

 
Five
commenters,
while
somewhat
supportive
of
the
underlying
methodology,
believe
that
the
formula
to
be
used
by
EPA
to
calculate
available
stocks
has
major
flaws
[
0212,
0226,
0245,
0247,
0248].
 
Three
of
these
commenters
regard
the
formula
as
being
too
complex
and,
given
the
lack
of
definitive
numbers
for
most
of
the
terms,
as
only
being
able
to
be
used
to
give
at
best
a
qualitative
result
[
0212,
0226,
0245].
 
While
nearly
all
commenters
suggested
changes
to
one
or
more
of
the
terms
in
the
formula,
one
commenter
makes
the
general
observation
that
"
some
of
the
variables
used
within
the
formula
are
not
clearly
defined
which
may
lead
EPA
to
underestimate
or
overestimate
the
true
extent
of
available
stock."
[
0247]
 
One
commenter
believes
that
the
formula
in
its
current
form
will
prevent
stocks
from
being
drawn
down
at
a
desirable
rate.
This
belief
is
based
on
what
the
commenter
sees
as
an
incorrect
assumption
by
EPA
that
the
majority
of
existing
stocks
are
held
by
producers
as
opposed
to
distributors.
[
0248]

Response
#
20:
EPA
is
not
implementing
the
available
stockpile
methodology
in
today's
final
rule
and
therefore
is
not
responding
to
comments
on
the
details
of
the
methodology
described
in
the
proposal.
Should
EPA
utilize
this
methodology
in
future,
EPA
will
consider
these
comments
at
that
time.

 
Three
commenters
request
clarification
of
the
means
by,
and
point
in
time
for,
which
the
ES
(
existing
stocks)
factor
is
to
be
calculated
[
0212,
0226,
0245].
 
These
three
commenters
note
that
specific
information
on
the
method
to
be
used
in
calculating
the
ES
factor
is
not
given
[
0212,
0226,
0245].
 
Further,
these
commenters
say
there
is
some
confusion
as
to
the
point
in
time
for
which
the
ES
factor
is
to
be
calculated.
"
While
the
supporting
technical
document
for
EPA's
formula
specifies
this
point
as
the
end
of
calendar
year
2003,
the
NPRM
implies
that
information
collected
under
an
August
25,
2004
Section
114
request
will
somehow
be
used
to
develop
this
value."
[
0212,
0226,
0245]

Response
#
20:
EPA
is
not
implementing
the
available
stockpile
methodology
in
today's
final
rule
and
therefore
is
not
responding
to
comments
on
the
details
of
the
methodology
described
in
the
proposal.
Should
EPA
utilize
this
methodology
in
future,
EPA
will
consider
these
comments
at
that
time.

 
It
is
proposed
by
three
commenters
that
the
B
(
banked
stocks)
factor
be
eliminated
from
the
formula
[
0212,
0226,
0245].
31
 
These
three
commenters
note
that,
for
the
control
periods
following
2005,
"
B
will
include
any
methyl
bromide
produced
by
expending
CUAs,
but
not
sold
to
end
users
by
the
end
of
the
control
period."
The
concern
is
that,
in
not
knowing
the
B
factor
until
the
end
of
say
2005,
the
available
stocks
for
2006
will
not
be
able
to
be
calculated
prior
to
the
end
of
2005
as
is
needed
for
planning
purposes.
[
0212,
0226,
0245]
 
In
place
of
the
factor
B,
these
commenters
propose
that
"
EPA
should
allow
for
the
unrestricted
carry­
over
of
critical
use
methyl
bromide."
[
0212,
0226,
0245]

Response
#
21:
EPA
is
not
implementing
the
available
stockpile
methodology
in
today's
final
rule
and
therefore
is
not
responding
to
comments
on
the
details
of
the
methodology
described
in
the
proposal.
Should
EPA
utilize
this
methodology
in
future,
EPA
will
consider
these
comments
at
that
time.

 
One
commenter
expresses
a
couple
of
concerns
with
regard
to
the
E1
(
stocks
for
developing
countries
not
produced
with
Article
5
allowances)
factor
[
0247].
 
The
first
concern
is
in
regards
to
"
how
it
is
possible
to
legitimately
hold
stocks
of
MB
for
export
to
developing
countries
when
those
stocks
were
not
produced
with
Article
5
allowances."
[
0247]
 
The
commenter's
second
concern
is
that,
where
the
E1
factor
stocks
are
legitimate,
"
the
definition
of
E1
be
reviewed
and
more
clearly
defined
to
ensure
it
does
not
include
quantities
previously
excluded
from
the
existing
unrestricted
stock
estimates."
[
0247]
 
It
is
to
be
noted
that
three
sets
of
comments
raise
the
somewhat
unrelated
issue
of
the
need
for
EPA
to
issue
a
final
rule
on
Article
5
allowances
before
January
1,
2005,
to
ensure
the
continued
availability
of
these
allowances
[
0212,
0226,
0245].

Response
#
22:
EPA
is
not
implementing
the
available
stockpile
methodology
in
today's
final
rule
and
therefore
is
not
responding
to
comments
on
the
details
of
the
methodology
described
in
the
proposal.
Should
EPA
utilize
this
methodology
in
future,
EPA
will
consider
these
comments
at
that
time.
EPA
is
addressing
the
issue
of
Article
5
allowances
through
a
separate
action.

 
There
are
several
comments
of
varying
nature
concerning
the
E2
(
stocks
for
developed
countries
in
2004)
factor
[
0133,
0140,
0212,
0226,
0245,
0247].
 
One
commenter
claims
that
there
is
no
basis
for
the
E2
factor
[
0133,
0140].
 
Three
commenters
support
the
inclusion
of
the
E2
factor
on
the
grounds
that
regulations
for
a
critical
use
system
may
not
be
fully,
if
at
all,
implemented
in
2005
in
other
developed
nations
and
that
EPA
must
take
exports
of
stocks
to
these
countries
into
account
in
determining
available
stocks
for
the
US
[
0212,
0226,
0245].
 
A
concern
that
E2
factor
stocks
might
be
double
counted
under
the
D
(
estimated
drawdown
of
stocks
by
US
and
international
consumers
in
2004)
32
factor
led
one
commenter
to
request
that
the
definitions
of
E2
and
D
be
reviewed
and
more
clearly
defined
[
0247].
 
Response
#
23:
EPA
is
not
implementing
the
available
stockpile
methodology
in
today's
final
rule
and
therefore
is
not
responding
to
comments
on
the
details
of
the
methodology
described
in
the
proposal.
Should
EPA
utilize
this
methodology
in
future,
EPA
will
consider
these
comments
at
that
time.

 
A
number
of
differing
views
are
held
with
regard
to
the
amount
of
stock,
if
any,
needed
under
the
C
(
catastrophic
reserve)
factor
[
0133,
0140,
0212,
0214,
0219,
0223,
0226,
0245,
0247].
 
One
commenter
believes
that
there
is
no
basis
for
the
C
factor.
This
commenter
holds
this
belief
for
three
reasons;
first,
the
commenter
is
not
aware
of
any
precedent
of
inventory
of
a
chemical
being
held
"
as
a
reserve
against
a
hypothetical
catastrophic
loss
of
production
capacity;
second,
"
there
has
never
been
such
an
event
for
methyl
bromide";
and,
three,
"
EPA
has
not
provided
a
basis
for
believing
that
such
a
catastrophe
is
a
reasonable
possibility."
[
0133,
0140]
 
Another
commenter
supports
the
inclusion
of
the
C
factor,
but
proposes
that
the
amount
of
stock
that
be
set
aside
as
a
reserve
be
reduced
to
six
weeks'
supply.
To
support
this
proposed
reduction
in
the
amount
of
reserve
stock,
this
commenter
points
out
that,
to
date,
there
has
not
been
a
catastrophic
loss
of
methyl
bromide
production
capacity.
Further,
the
commenter
adds
that,
if
a
single
manufacturer
experienced
a
catastrophic
production
failure,
there
exist
a
significant
number
of
manufacturers
worldwide
with
excess
production
capacity.
[
0247]
 
The
majority
of
comments
regarding
the
C
factor,
however,
suggest
that
the
amount
of
stock
held
as
a
reserve
should
be
increased
from
three
months'
to
nine
months'
[
0212,
0226,
0245]
or
one
year's
[
0214,
0219,
0223]
supply.

Response
#
24:
EPA
is
not
implementing
the
available
stockpile
methodology
in
today's
final
rule
and
therefore
is
not
responding
to
comments
on
the
details
of
the
methodology
described
in
the
proposal.
Should
EPA
utilize
this
methodology
in
future,
EPA
will
consider
these
comments
at
that
time.

 
The
need
for
the
N
(
stocks
to
be
set
aside
for
non­
critical
uses)
factor
is
rejected
by
two
commenters
[
0133,
0140,
0247]
and
supported
by
one
[
0245].
 
One
of
the
two
commenters
against
the
N
factor
being
included
argues
that
"
non­
critical
users
already
have
technically
and
economically
feasible
alternatives
available
and
in
use
today"
and
further
that
"
it
is
clearly
against
the
intent
of
the
Protocol
to
reserve
MB
stocks
for
non­
critical
uses
that,
when
reserved,
effectively
trigger
the
production
of
new
ODS
for
CUEs."
[
0247]

Response
#
25:
EPA
is
not
implementing
the
available
stockpile
methodology
in
today's
final
rule
and
therefore
is
not
responding
to
comments
on
the
details
of
the
33
methodology
described
in
the
proposal.
Should
EPA
utilize
this
methodology
in
future,
EPA
will
consider
these
comments
at
that
time.

 
Comments
received
regarding
the
D
(
drawdown
of
stocks
through
2004)
factor
concern
either
the
need
to
increase
the
stock
amount
[
0214,
0219,
0223]
or
to
better
explain
how
this
factor
is
to
be
estimated
[
0212,
0226,
0245].
 
One
of
the
commenters
suggesting
that
EPA
increase
the
amount
considered
for
the
D
factor
argues
that
any
necessary
corrections
can
be
made
prior
to
the
2006
control
period
[
0214].
 
Three
commenters
request
that
EPA
explain
how
the
information
provided
to
the
Agency
under
the
August
25
Section
114
request
will
be
used
to
help
estimate
the
D
factor
[
0212,
0226,
0245].

Response
#
26:
EPA
is
not
implementing
the
available
stockpile
methodology
in
today's
final
rule
and
therefore
is
not
responding
to
comments
on
the
details
of
the
methodology
described
in
the
proposal.
Should
EPA
utilize
this
methodology
in
future,
EPA
will
consider
these
comments
at
that
time.

 
Three
commenters
suggest
that
an
additional
factor,
which
might
be
called
"
DC",
be
added
to
the
formula
to
set
aside
sufficient
stock
to
fill
the
distribution
chain
[
0212,
0226,
0245].
 
It
is
proposed
by
these
three
commenters
that
the
DC
factor
be
assigned
an
amount
of
stock
equivalent
to
three
months'
production
[
0212,
0226,
0245].
 
These
commenters
believe
that
the
DC
factor
is
needed
in
addition
to
the
C
factor
to
help
protect
against
supply
disruptions
[
0212,
0226,
0245].

Response
#
27:
EPA
is
not
implementing
the
available
stockpile
methodology
in
today's
final
rule
and
therefore
is
not
responding
to
comments
on
the
details
of
the
methodology
described
in
the
proposal.
Should
EPA
utilize
this
methodology
in
future,
EPA
will
consider
these
comments
at
that
time.

 
One
commenter
has
a
number
of
questions
for
EPA
regarding
the
category
labeled
quarantine
and
preshipment
stocks
(
QPS)
[
0133].
 
The
commenter
requests
EPA
to
clarify
the
definition
of
the
so­
called
"
restricted
stocks
of
methyl
bromide
that
were
produced
for
quarantine
and
preshipment."
[
0133]
 
The
commenter
asks
"
how
does
the
agency
propose
to
determine
the
amount
of
stocks
currently
held
for
that
purpose?"
and
"
does
the
agency
have
information
regarding
the
amount
of
stocks
held
for
that
purpose
in
2002
and
2003?"
[
0133]

Response
#
30:
The
amount
of
stocks
held
for
QPS
purposes
is
identified
at
the
time
of
production
or
import.
To
assure
compliance
with
Montreal
Protocol
requirements,
EPA
essentially
accounts
for
QPS
quantities
separately
from
non­
QPS
methyl
bromide.
Those
quantities
designated
QPS
at
the
time
of
production
or
import
are
not
fungible
with
other
amounts
of
methyl
bromide.
While
EPA
is
not
34
implementing
the
available
stockpile
methodology
in
today's
final
rule,
EPA
notes
that
40
CFR
82.13
contains
provisions
requiring
producers
and
imports
to
keep
records
and
make
reports
regarding
the
production,
import,
and
sale
of
methyl
bromide
for
QPS
purposes.
See,
for
example,
82.13(
f)(
2)(
xvii);
82.13(
f)(
3)(
xiii);
82.13(
g)(
1)(
xvii);
82.13(
g)(
4)(
xv).

 
One
commenter
states
the
need
for
currently
accepted
quarantine
and
preshipment
stock
(
QPS)
exemptions
to
be
maintained
[
0217].
 
The
commenter
notes
that
the
amount
of
methyl
bromide
in
the
US
nomination
for
the
orchard
nursery
and
raspberry
nursery
segment
was
less
than
that
requested
by
the
Western
Raspberry
Nursery
Consortium
based
on
EPA's
determination
that
a
portion
of
the
amount
requested
would
be
considered
a
quarantine­
preshipment
(
QPS)
use.
Given
this,
the
commenter
asserts
that
"
if,
for
any
reason,
the
QPS
definition
changes,
the
critical
need
for
methyl
bromide
is
no
less
and
therefore
the
amount
of
methyl
bromide
necessary
to
meet
the
needs
of
this
segment
should
be
increased
appropriately."
[
0217]

Response
#
31:
EPA
is
not
amending
the
quarantine
and
preshipment
exemption
program
with
today's
rule.
35
2.
c.
Disclosure
of
data
(
CBI)

Commenter
Organization
Document
ID
Number
David
Doniger
Natural
Resources
Defense
Council
(
NRDC)
0133,
0140­
DD
(
transcript
of
public
hearing),
0246
Christine
Hoekenga
N/
A
0143
Sara
Hoffman
Genthner
N/
A
0158
Linda
G.
Akers
N/
A
0161
Ruth
Niswander
N/
A
0163
Amber
Standridge
N/
A
0164
Laura
Turner
N/
A
0168
George
&
Frances
Alderson
N/
A
0171
Anne
Daletski
N/
A
0185
Heather
Germadnik
N/
A
0240
 
One
commenter
notes
that
EPA
has
not
produced
data
as
to
the
stocks
held
by
producers
and
top­
level
suppliers,
and
thus,
asserts
that
EPA
has
not
answered
that
portion
of
the
commenter's
March
19,
2004,
Freedom
of
Information
Act
(
FOIA)
request
relating
to
methyl
bromide
stocks
("
stocks
FOIA").
The
commenter
has
initiated
a
lawsuit
to
compel
disclosure
(
NRDC
v.
Leavitt,
Civil
Action.
No
04­
1295
(
HHK)).
The
commenter
acknowledges,
however,
that
two
of
the
five
companies
that
submitted
the
data
have
filed
reverse­
FOIA
cases
in
two
other
jurisdictions.
This
commenter
asserts
that
EPA
cannot
publish
a
final
rule
that
meets
CAA
standards
of
reasoned
decision
making
without
making
this
data
available
for
comment
[
0133,
0140,
0246].
The
same
commenter
also
argues
that
the
Agency's
June
18,
2004
response
to
the
commenter's
April
29,
2004
FOIA
request
methyl
bromide
use
data
and
analysis
("
use
data")
was
incomplete
because
it
did
not
disclose
data
referenced
in
an
October
7,
2004
letter
from
EPA
to
Senator
James
Jeffords.
The
commenter
asserts
that
if
EPA
intends
to
rely
on
that
use
data,
the
Agency
must
provide
an
opportunity
for
comment
on
the
data
and
the
methodology
by
which
it
developed
its
estimate
of
total
use
from
the
data.
The
commenter
takes
issue
with
EPA's
actions
in
withholding
certain
data
with
regard
to
both
the
stocks
FOIA
and
the
use
FOIA,
namely
the
individual
and
aggregate
stocks
data
and
"
proprietary
use
data
and/
or
databases."
According
to
the
commenter,
those
data
constitute
"
emission
data"
under
section
114(
c)
of
the
CAA
and
therefore
are
not
eligible
for
protection
as
confidential
business
information
or
trade
secrets.
The
commenter
also
notes
that
section
114(
c)
allows
EPA
to
disclose
information
that
would
otherwise
be
treated
as
confidential
"
when
relevant
in
any
proceeding"
under
the
CAA.

 
One
commenter
believes
that
EPA
is
not
disclosing
data
regarding
methyl
bromide
[
0158].

 
Six
commenters
put
forward
the
opinion
that
EPA
is
aiding
chemical
companies
to
avoid
revealing
their
methyl
bromide
stockpiles
[
0143,
0161,
0163,
0164,
0168,
0185,
0240].
36
 
One
commenter
believes
that
some
companies
have
built
up
large
stockpiles
of
methyl
bromide
that
have
not
been
revealed
in
the
public
record
[
0171].

Response
#
32:
EPA
is
following
its
own
regulations
regarding
responses
to
requests
for
disclosure
of
information
under
the
Freedom
of
Information
Act
and
the
treatment
of
information
claimed
as
confidential.
These
regulations
appear
at
40
CFR
§
§
2.100­
2.311.
EPA
received
two
Freedom
of
Information
Act
(
FOIA)
requests
from
one
of
the
commenters.
One
requests
concerned
data
on
use
of
methyl
bromide
("
use"
FOIA
request)
and
the
other
concerned
data
on
individual
company
and
aggregate
holdings
of
pre­
phaseout
inventories
of
methyl
bromide
("
stocks"
FOIA
request).
In
addition,
EPA
received
an
additional
FOIA
request
from
an
entity
that
did
not
provide
comment
on
the
rulemaking
on
EPA
estimates
of
use
of
methyl
bromide
and
the
individual
and
aggregate
holdings
of
stocks
("
EIA"
FOIA).
EPA
initially
denied
the
"
stocks"
FOIA
request
pending
a
confidentiality
determination.
EPA
determined
that
the
individual
stocks
information
was
confidential
but
the
aggregate
was
not.
Under
EPA
regulations,
EPA
was
to
disclose
the
information
determined
not
to
be
confidential
unless
the
companies
that
had
submitted
the
information
initiated
an
action
in
federal
court
to
obtain
judicial
review
of
the
determination.
Two
of
the
companies
in
question
availed
themselves
of
this
opportunity.
Therefore,
EPA
did
not
immediately
release
the
aggregate
stocks
information.
Whether
EPA
ultimately
releases
that
information
will
depend
on
the
outcome
of
those
actions.
In
addition,
EPA
disagrees
with
the
commenter's
claim
that
the
Agency
cannot
issue
a
final
rule
that
meets
CAA
standards
of
reasoned
decision
making
without
making
the
stocks
data
available
for
comment.
Because
today's
final
rule
does
not
rely
on
the
available
stocks
methodology
described
in
the
proposal
for
purposes
of
calculating
the
amount
of
CUE
methyl
bromide
to
come
from
stocks
and
the
amount
to
come
from
new
production,
clearly
EPA
is
not
required
to
make
public
any
additional
information
regarding
the
basis
for
such
an
analysis.
EPA
is
not
addressing
at
this
time
the
hypothetical
question
of
whether,
if
EPA
were
to
rely
on
an
analysis
of
available
stocks
for
those
purposes,
EPA
would
need
to
allow
comment
on
the
individual
or
aggregate
stocks
data.
EPA
is
relying
on
the
individual
and
aggregate
stocks
data
for
only
one
aspect
of
today's
final
rule,
namely
the
pro
rata
distribution
of
CSAs.
The
rule
states
the
total
amount
of
CSAs
for
2005
and
the
companies
to
which
EPA
is
allocating
CSAs
but
not
the
amount
allocated
to
each
company.
This
is
because
EPA
has
determined
that
the
individual
holdings
of
stocks
of
methyl
bromide
are
confidential
business
information.
The
amount
of
CSAs
allocated
to
each
company
could
be
used
to
calculate
the
individual
stock
holdings
if
information
on
aggregate
stock
holdings
were
released.
As
discussed
above,
EPA
has
determined
that
the
aggregate
stock
information
is
not
confidential
business
information
but
is
currently
withholding
that
information
due
to
the
filing
of
complaints
seeking
to
enjoin
the
Agency
from
its
release.
Because
release
could
occur
depending
on
the
outcome
of
that
litigation,
EPA
is
not
listing
the
number
of
CSAs
distributed
to
each
entity.
37
Concurrent
with
today's
rule,
EPA
is
sending
letters
to
each
entity
to
inform
them
of
the
number
of
critical
stock
allowances
EPA
has
issued
them.
In
addition,
EPA
is
placing
a
document
listing
the
allocations
and
distribution
basis
of
critical
stock
allowances
for
each
entity
in
the
confidential
portion
of
the
docket.
EPA
does
not
believe
that
commenters
needed
to
know
each
company's
absolute
or
relative
share
of
total
inventory
in
order
to
file
meaningful
comments
on
the
CSA
aspects
of
this
rule,
such
as
the
total
amount
of
CSAs
to
be
allocated
or
the
basis
by
which
the
CSAs
would
be
distributed.
The
NPRM
discussed
distribution
of
CSAs
on
the
basis
of
pro
rata
share
of
total
inventory
and
stated
that
a
possible
approach
was
to
conclude
that
the
amount
of
CUE
material
available
from
stocks
was
equal
to
the
difference
between
the
use
cap
and
the
production
cap.
69
FR
52375,
52377.
Therefore,
there
was
adequate
notice
and
opportunity
to
comment
on
these
points.
As
noted
by
the
commenter,
section
114(
c)
of
the
CAA
states
that
emission
data
may
not
be
kept
confidential.
(
42
U.
S.
C.
§
7414(
c)).
EPA
regulations
define
emission
data
as:
(
A)
Information
necessary
to
determine
the
identity,
amount,
frequency,
concentration,
or
other
characteristics
...
of
any
emission
which
has
been
emitted
by
the
source;
(
B)
Information
necessary
to
determine
the
identity,
amount,
frequency,
concentration,
or
other
characteristics
...
of
the
emissions,
which
under
an
applicable
standard
or
limitation,
the
source
was
authorized
to
emit.
.
.
and
(
C)
A
general
description
of
the
location
and/
or
nature
of
the
source
to
the
extent
necessary
to
identify
the
source
and
distinguish
it
from
other
sources
....
(
40
C.
F.
R.
§
2.301(
a)(
2)(
I).)
EPA
regulations
further
state
as
follows:
"
Emission
data,
standards
or
limitations,
and
any
other
information
provided
under
section
114
or
208
of
the
Act
which
is
determined
under
this
subpart
not
to
be
entitled
to
confidential
treatment,
shall
be
available
to
the
public
notwithstanding
any
other
provision
of
this
part."
(
40
C.
F.
R.
§
2.301(
f))
EPA
does
not
consider
either
the
individual
or
the
aggregate
stocks
data
to
be
emission
data
under
Section
114(
c)
of
the
Clean
Air
Act.
The
five
companies
that
submitted
the
data
to
EPA
are
producers,
importers,
or
distributors
of
methyl
bromide.
They
do
not
release
methyl
bromide
into
the
atmosphere
and
thus
are
not
themselves
the
"
sources"
of
any
past
or
future
emissions.
Thus,
the
stocks
data
says
nothing
about
what
those
companies
"
emitted"
or
were
"
authorized
to
emit."
Any
future
emissions
will
come
from
the
end
users
and
not
from
the
five
companies.
Furthermore,
the
amount
in
stockpile
does
not
indicate
the
amount
that
will
be
drawn
down
from
the
stockpile
for
use
during
a
control
period.
Therefore,
it
is
impossible
to
determine
from
this
information
the
amount
of
methyl
bromide
that
will
be
emitted
during
any
specified
period.
EPA
issued
initial
responses
to
the
"
use"
FOIA
request
on
June
18,
2004
and
to
the
"
EIA"
FOIA
request
on
September
29,2004.
In
those
responses,
EPA
noted
that
it
had
withheld
documents
"
determined
to
be
exempt
from
mandatory
disclosure
by
virtue
of
5
U.
S.
C.
(
b)
(
4)
(
confidential
business
information)."
Such
documents
included
"
All
proprietary
use
data
and/
or
databases."
38
The
commenter
asserts
that
EPA
cannot
issue
a
reasoned
decision
without
disclosing
and
taking
comment
on
the
"
proprietary
use
data
and/
or
databases"
and
any
analysis
performed
with
that
data.
EPA
believes
that
the
U.
S.
nomination
and
responses
to
MBTOC
contained
sufficient
information
to
allow
interested
members
of
the
public
to
file
comments
on
the
basis
for
the
nomination
and
today's
action.
EPA
notes
that
the
analysis
of
critical
need
does
not
rely
exclusively
on
proprietary
data
and
that
the
analysis
itself
is
public.
EPA
relied
on
the
proprietary
data
sets,
among
others,
to
verify
the
estimated
use
data
provided
to
the
Agency
by
applicants.
EPA
conducted
an
analysis
of
the
"
critical
need"
for
methyl
bromide
that
examined
factors
such
as
the
percentage
of
total
production
that
exhibits
a
certain
critical
condition
or
the
dosage
rates
used
in
fumigations.
This
information
is
contained
in
the
numerical
analysis
(
referred
to
as
the
"
5
Way
Analysis")
and/
or
the
Bromide
Usage
Numerical
Index
(
BUNI),
available
on
the
docket
as
part
of
the
nomination
of
critical
uses
and
the
responses
to
MBTOC.
In
instances
where
EPA
relied
on
a
commercial
database
or
other
such
source
of
data,
a
citation
is
typically
provided.
In
instances
where
EPA
relied
upon
expert
judgment,
no
citation
is
provided.
EIA
has
filed
an
administrative
appeal
of
EPA's
partial
denial
of
its
FOIA
request.
That
appeal
is
currently
pending.
EPA
is
committed
to
following
the
process
set
forth
in
its
regulations
for
addressing
the
EIA
request
and
pending
appeal.
At
this
time,
EPA
has
not
determined
whether
the
data
in
question
is
"
emission
data"
for
purposes
of
CAA
section
114.
As
stated
above,
EPA
believes
that
sufficient
information
was
available
to
the
public
on
the
date
of
proposal
to
allow
for
meaningful
comment.
The
commenter
is
correct
that
section
114(
c)
of
the
CAA
allows
EPA
to
disclose
information
otherwise
entitled
to
confidential
treatment
"
when
relevant
in
any
proceeding"
under
the
CAA.
However,
such
action
is
discretionary,
as
evidenced
by
the
use
of
the
word
"
may"
in
section
114(
c)
and
in
the
implementing
regulations
at
40
CFR
2.301(
g)(
1­
2).
Any
disclosure
of
information
under
this
authority
would
be
governed
by
the
process
described
at
40
CFR
2.301(
g)(
1­
2),
which
includes
notification
to
the
affected
business,
a
determination
of
relevancy
and
a
determination
that
the
disclosure
would
be
in
the
public
interest.
EPA
does
not
believe
there
is
sufficient
cause
to
set
that
process
in
motion
at
this
time.
39
3.
Summary
of
Comments
Relating
to
ACCESS
TO
STOCKS
3.
a.
Who
should
get
access
to
stocks
Commenter
Organization
Document
ID
Number
James
Nicol
Great
Lakes
Chemical
Corporation
0140­
JN
(
transcript
of
public
hearing)
Dan
Legard
California
Strawberry
Commission
0140­
DL
(
transcript
of
public
hearing)
Daren
Gee
N/
A
0140­
DG
(
transcript
of
public
hearing)
Steve
Godbehere
Hendrix
and
Dale,
Inc.
0140­
SG
(
transcript
of
public
hearing)
Richard
Matoian
California
Fig
Industry
0202
Dennis
Balint
California
Walnut
Commission
0203
Richard
Peterson
California
Dried
Plum
Board
0206
Ken
Woody
Plum
Creek
Timber
Company
0209
A.
R.
Chase
California
Cut
Flower
Commission
0210
Steve
Hensley
USA
Rice
Federation
(
USA
Rice)
0214
Wade
Purvis
Pacific
Collier
Fresh
0215
David
R.
Riggs
Western
Raspberry
Nursery
Consortium
0217
Edward
M.
Ruckert
Crop
Protection
Coalition
0219
James
A.
Bair
North
American
Millers'
Association
0220
Stephen
E.
Payne
Pet
Food
Institute
(
PFI)
0221
Daniel
A.
Botts
Florida
Fruit
&
Vegetable
Association
(
FFVA)
0223
Steve
Godbehere
Hendrix
and
Dale,
Inc.
0227
Gene
Harrington
National
Pest
Management
Association,
Inc.
0229
Paul
Niday
TriCal,
Inc.
0231
Rex
Cunningham
Emerald
Island
Turf,
Inc.
0233
Tim
Maniscalo
Dow
AgroSciences
LLC
(
DAS)
0247
John
Sansone
Cardinal
Professional
Products
0248
David
Corbett
David
Corbett
Farms,
LLC
0249
Randy
DeWitt
DeWitt
Produce
Co.,
Inc.
0250
Donnie
H.
Morris
Georgia
Fruit
and
Vegetable
Growers
Association
0251
Gibbs
Patrick,
Jr.
Gibbs
Patrick
Farms,
Inc.
0252
Melvin
Mathis
MGM
Plant
Company
0253
Wilbert
Morgan
Morgan
Farms
0254
Harry
Vanderveer
Texas
Forest
Service
0255
Mark
Harrell
Florida
Strawberry
Growers
Association
0256
Don
Stringfield
MeadWestvaco
Corporation
0257
Paul
Phypers,
Jr.
Happiness
Farms,
Inc.
0259
Douglas
H.
Fender
Turfgrass
Producers
International
0205
Calvin
Everette
Lewis,
Jr.
HY
Yield
Bromide,
Inc.
0242
40
 
Twenty­
eight
commenters
make
specific
remarks
regarding
who
should
get
access
to
existing
stocks
of
methyl
bromide
[
0140
 
DL,
0140
 
SG,
0202,
0203,
0206,
0209,
0210,
0214,
0215,
0217,
0219,
0220,
0223,
0227,
0229,
0231,
0233,
0247,
0249,
0250,
0251,
0252,
0253,
0254,
0255,
0256,
0257,
0259].
 
Twenty
of
these
commenters
believe
that
existing
stocks
should
be
made
freely
available
to
both
critical
and
non­
critical
users
[
0202,
0203,
0206,
0209,
0214,
0215,
0219,
0220,
0223,
0233,
0249,
0250,
0251,
0252,
0253,
0254,
0255,
0256,
0257,
0259].
 
Four
of
these
commenters
only
request
that
approved
critical
users
not
be
denied
access
to
existing
stocks
[
0140
 
DL,
0140
 
SG,
0210,
0217].
 
Three
sets
of
these
comments
are
only
supportive
of
non­
critical
users
being
granted
access
to
existing
stocks
[
0227,
0229,
0231].
 
The
last
commenter
in
this
group
"
does
not
support
the
use
of
existing
MB
stockpiles
for
any
denied
CUE
or
non­
critical
use"
[
0247].

 
Seven
commenters
argue
that
it
would
be
particularly
unfair
to
allow
access
to
existing
stocks
by
non­
critical
users
but
not
approved
critical
users
[
0202,
0203,
0206,
0214,
0217,
0219,
0223].
 
It
is
the
stated
position
of
six
of
these
commenters
that
existing
stocks
should
be
available
to
all
those
who
need
the
product
and,
in
particular,
those
who
expended
the
time,
energy
and
substantial
resources
in
assembling
a
critical
use
exemption
(
CUE)
petition.
Indeed,
these
commenters
question
as
to
what
could
possibly
be
the
public
policy
rationale
for
rewarding
those
who
chose
not
to
participate
in
the
CUE
process,
while
penalizing
those
that
did
at
considerable
time
and
cost.
[
0202,
0203,
0206,
0217,
0219,
0223]

Response
#
33:
Those
entities
that
put
in
time
and
money
to
apply
for
an
exemption
and
qualify
as
approved
critical
users
have
access
to
new
production
of
methyl
bromide
not
available
for
any
other
uses.
Thus,
approved
critical
users
are
rewarded
for
their
efforts.
The
reasons
for
restricting
the
amount
of
stocks
that
can
be
sold
for
critical
uses
are
discussed
further
below
under
"
legal
basis."
Those
who
chose
not
to
participate
in
the
CUE
process
do
not
obtain
new
production
and
thus
are
not
"
rewarded"
for
their
inaction.
This
issue
is
discussed
more
fully
below.

 
The
three
commenters
who
support
non­
critical
users
having
access
to
existing
stocks
do
so
based
on
a
number
of
reasons
[
0227,
0229,
0231].
 
Two
of
these
commenters
argue
that
"
since
EPA
has
deemed
these
growers
not
to
have
a
critical
use,
they
therefore
fall
outside
of
the
use
cap
established
by
the
Parties"
to
the
Montreal
Protocol
[
0227,
0231].
 
One
of
these
commenters
also
points
out
that
"
many
of
these
users
have
very
low
volume
uses
of
methyl
bromide,
but
their
use
is
very
important
in
the
entire
picture
of
American
agriculture."
[
0227]
 
Finally,
the
point
is
made
by
the
latter
that
"
these
low
volume
methyl
bromide
users
expected
to
have
access
to
available
stocks."
[
0227]
41
Response
#
34:
Decision
Ex
I/
3(
3)
does
not
require
that
individual
Parties
prohibit
use
of
stocks
by
users
whose
uses
fall
outside
the
categories
of
agreed
critical
uses.
One,
low
volume
users
or
users
in
the
midst
of
a
transition
may
have
been
relying
on
the
availability
of
stocks
as
they
ease
into
alternatives
and
therefore
decided
not
to
apply
for
an
exemption.
Two,
as
a
matter
of
policy
use
of
stocks
will
cushion
near
term
transition
and
as
stocks
are
drawn
down
will
allow
a
slow
but
steady
price
increase
thus
facilitating
movement
away
from
the
ozone
depleting
chemicals,
an
environmentally
positive
outcome.

 
The
commenter
against
the
use
of
existing
stocks
by
non­
critical
users
argues
that,
if
non­
critical
users
but
not
critical
users
were
given
access
to
stocks,
it
would
provide
an
incentive
for
users
not
to
participate
in
the
critical
use
exemption
(
CUE)
process
[
0247].
 
The
commenter
makes
the
case
that
all
potential
users
"
should
participate
in
the
US
and
Montreal
Protocol
process
where
CUE
applications
are
submitted,
considered
and
accepted
or
rejected.
Without
this,
users
who
have
not
participated
in
the
process
would
have
an
advantage
and
easy
access
to
MB
over
those
who
have
followed
the
process."
[
0247]

Response
#
35:
EPA
is
communicating
that
users
who
anticipate
a
need
for
methyl
bromide
beyond
the
phaseout
date
should
apply
for
an
exemption.
Reliance
on
the
stocks
is
a
temporary
and
uncertain
solution
whereas
those
uses
that
demonstrate
a
critical
need
are
provided
with
additional
certainty
regarding
supplies
of
methyl
bromide.

 
Twenty­
four
commenters
support
access
to
existing
stocks,
whether
this
be
by
critical
users,
non­
critical
users
or
both,
for
one
or
more
of
the
reasons
given
below
[
0140
 
JN,
0140
 
DL,
0140
 
DG,
0140­
SG,
0202,
0203,
02025,
0206,
0209,
0215,
0221,
0233,
0242,
0248,
0249,
0250,
0251,
0252,
0253,
0254,
0255,
0256,
0257,
0259].
 
Twelve
commenters
argue
that
access
to
existing
stocks
is
needed
if
users
are
to
be
able
to
smoothly
and
successfully
reduce
their
use
of
methyl
bromide
and/
or
switch
to
alternatives
[
0140­
JN,
0202,
0203,
0206,
0209,
0215,
0221,
0233,
0249,
0250,
0251,
0252,
0255,
0256,
0259].
Indeed,
as
expressed
by
three
of
these
commenters,
the
availability
of
existing
stocks
is
seen
to
provide
a
short
term
safety
net
[
0202,
0203,
0206].
 
Fourteen
sets
of
comments
assert
that
access
to
existing
stocks
is
needed
to
protect
against
higher
prices
for
methyl
bromide
[
0140­
DL,
0140­
DG,
0205,
0209,
0215,
0233,
0248,
0249,
0250,
0251,
0252,
0255,
0256,
0259].
In
the
words
of
one
commenter,
it
is
believed
that
restricting
access
to
stocks
"
will
result
in
significant
increases
in
costs
to
growers
above
and
beyond
those
already
created
by
the
phase­
out
of
methyl
bromide."
[
0140­
DL]
 
Fifteen
commenters
are
against
restricting
access
to
existing
stocks
on
the
basis
that
it
penalizes
the
many
users
who,
believing
that
there
would
be
full
and
unrestricted
use
of
stockpiles,
took
steps
to
reduce
methyl
bromide
use
42
[
0140­
SG,
0209,
0215,
0233,
0249,
0250,
0251,
0252,
0253,
0254,
0255,
0256,
0257,
0259].
The
measures
taken
by
users
to
lessen
their
use
of
methyl
bromide
included
"
reducing
the
amount
of
methyl
bromide
use
per
acre
by
going
to
higher
chloropicrin
mixtures,
use
of
more
costly
high
barrier
tarps,
and
the
investment
in
more
accurate
application
systems."
[
0209,
0215,
0233,
0249,
0250,
0251,
0252,
0255,
0256,
0259]
A
number
of
these
commenters
stated
"
it
is
unfair
to
restrict
the
use
of
these
stocks
that
were
banked
through
our
good
stewardship."
[
0209,
0215,
0233,
0249,
0250,
0251,
0252,
0253,
0254,
0255,
0256,
0257,
0259]

Response
#
36:
EPA
appreciates
that
there
may
be
users
who
are
against
restricting
access
to
existing
stocks
on
the
basis
that
it
penalizes
those
users
who
minimized
their
use
of
methyl
bromide
during
the
phasedown
believing
that
there
would
be
full
and
unrestricted
use
of
stockpiles
in
the
future.
EPA
would
point
out
however
that
Decision
IX/
6
requires,
as
a
condition
for
an
exemption,
that
users
minimize
use
and
emissions
of
methyl
bromide.
In
addition,
today's
final
rule
restricts
access
to
stocks
for
critical
uses.
Approved
critical
users
may
obtain
newly
produced
methyl
bromide
for
such
uses.
Some
commenters
indicated
that
the
restriction
on
stocks
would
lead
to
an
increase
in
costs
of
methyl
bromide.
Economic
theory
would
suggest
that
an
increase
in
the
price
of
critical
use
methyl
bromide
could
occur
should
demand
for
critical
use
methyl
bromide
exceed
supply.
EPA
believes
critical
use
demand
in
the
U.
S.
does
not
greatly
exceed
35%
of
baseline
and
would
therefore
not
expect
to
see
substantial
price
increases
as
a
result
of
the
35%
use
cap.
EPA
intends
to
publish
a
separate
Notice
of
Proposed
Rulemaking
reflecting
the
Parties'
supplemental
authorization
in
November
2004
and
believes
this
will
resolve
any
remaining
concern
regarding
inadequate
supply.
EPA
agrees
that
stocks
are
required
for
a
smooth
transition
but
believes
the
amounts
from
stocks
for
critical
uses
will
be
sufficient
when
coupled
with
the
allowable
new
production.
43
3.
b.
Legal
basis
Commenter
Organization
Document
ID
Number
Courtney
M.
Price
et
al.
American
Chemistry
Council's
Methyl
Bromide
Industry
Panel
0245
David
Doniger
Natural
Resources
Defense
Council
(
NRDC)
0140­
DD
 
One
commenter
argues
that
EPA
not
only
has
no
legal
authority
to
limit
the
use
of
stocks
by
critical
users
but
also
lacks
the
authority
to
expand
these
limits
to
include
non­
critical
users
[
0245].
In
section
3.
A
of
this
document,
an
additional
23
commenters
supported
unrestricted
access
to
stocks
primarily
for
policy
reasons
but
many
also
stated
that
EPA
does
not
have
authority
to
regulate
stocks.

Response
#
37:
These
commenters
argue
that
no
provision
of
the
CAA
authorizes
EPA
to
impose
such
restrictions.
Specifically,
they
state
that
section
604(
d)(
6)
refers
only
to
production,
importation,
and
consumption,
and
that
by
addressing
use
in
other
sections
of
the
CAA,
Congress
demonstrated
its
intent
to
deny
EPA
authority
to
regulate
stocks
under
604(
d)(
6).
However,
section
604(
d)(
6)
directly
relates
to
use:
the
exempted
production,
importation
and
consumption
is
for
critical
"
uses."
While
Congress,
in
the
Clean
Air
Act,
generally
mandated
that
production
and
consumption
of
ozone­
depleting
substances
be
phased
out
across
the
board,
regardless
of
use,
the
Act
does
contain
certain
provisions,
including
section
604(
d)(
6),
that
authorize
EPA
to
provide
exceptions
on
the
basis
of
use.
Thus,
section
604(
d)(
6)
is
one
of
the
provisions
of
the
Clean
Air
Act
where
use
is
clearly
at
issue.
In
today's
final
rule,
EPA
is
imposing
narrowly
tailored
use
restrictions
as
a
condition
of
obtaining
new
production
and
import.
EPA
believes
that
section
604(
d)(
6)
mandates
this
result.
In
section
604(
d)(
6),
Congress
provided
EPA
authority
to
exempt
production
and
import
of
methyl
bromide
for
critical
uses,
but
only
"
to
the
extent
consistent
with
the
Protocol."
The
use
restrictions
in
today's
final
rule
are
necessary
to
ensure
that
total
usage
for
critical
uses
does
not
exceed
the
limit
agreed
to
by
the
Parties
in
implementing
the
critical
use
provision
in
Article
2H
of
the
Protocol.
The
relationship
between
sections
604(
d)(
6)
and
614(
b)
of
the
CAA
and
the
Protocol
and
its
Decisions
is
discussed
in
detail
in
the
NPRM
and
in
the
background
section
of
this
preamble.
EPA
reads
Decision
Ex
I/
3(
3)
as
requiring
limitations
on
the
use
of
stocks
only
with
respect
to
uses
agreed
by
the
Parties
to
be
critical.
Annex
II
A
to
the
report
of
the
First
Extraordinary
Meeting
is
titled
"
Agreed
critical­
use
categories."
Paragraph
(
1)
of
Decision
Ex.
I/
3
permits
limited
production
and
consumption
"[
f]
or
the
agreed
critical
uses
set
forth
in
annex
II
A."
Because
paragraph
(
3)
of
Decision
Ex
I/
3
also
refers
to
Annex
II
A,
EPA
concludes
that
the
burden
of
the
stock
restriction
is
coextensive
with
the
benefit
of
the
new
production
and
import.
EPA
does
not
believe
that
Decision
Ex
I/
3(
3)
can
be
read
to
allow
unlimited
access
to
stocks
for
approved
critical
uses
because
the
prohibition
is
directly
linked
to
"
the
categories
set
forth
in
annex
II
A,"
which
are
44
the
categories
of
critical
uses
agreed
to
by
the
Parties.
Nor
can
the
Decision
be
read
to
allow
unlimited
access
to
stocks
for
all
uses:
that
would
fail
to
give
any
effect
to
the
phrase
"
shall
prohibit
the
use
of
stocks."
The
commenters
further
argue
that
EPA
cannot
rely
on
Decision
Ex
I/
3
to
justify
restrictions
on
use
of
stocks.
They
state
that
while
Decisions
may
be
used
to
interpret
existing
requirements
in
the
Protocol,
they
cannot
be
used
to
substantively
change
those
requirements.
However,
EPA
is
not
suggesting
that
Decision
Ex
I/
3
substantively
changed
the
requirements
of
Article
2H.
Article
2H
establishes
a
prohibition
on
the
production
and
consumption
of
methyl
bromide,
but
states
that
the
prohibition
shall
not
apply
"
to
the
extent
the
Parties
decide
to
permit
the
level
of
production
and
consumption
that
is
necessary
to
satisfy
uses
agreed
by
them
to
be
critical
uses."
The
Parties
have
not
interpreted
Article
2H
in
the
manner
the
commenters
assert.
Instead,
they
understood
the
terminology
referring
to
"
uses
agreed
by
them
to
be
critical
uses"
to
allow
the
Parties
to
tie
the
determinations
of
production
and
consumption
to
use.
Under
international
law,
this
interpretation
and
practice
of
the
Parties
may,
in
the
current
situation,
be
read
to
be
an
accurate
interpretation
of
Article
2H's
language.
Although
Decision
Ex.
I/
3
focuses
on
regulating
production
and
consumption,
the
Parties
could
reasonably
set
related
conditions
on
agreeing
to
production
and
consumption
at
a
particular
level.
Therefore,
the
stock
restrictions
are
an
integral
part
of
the
Parties'
decision
regarding
the
level
of
production
and
consumption
necessary
to
satisfy
critical
uses.
The
commenters
further
characterize
the
restrictions
on
access
to
stocks
proposed
in
the
NPRM
as
"
an
attempt
by
the
Agency
to
bypass
the
Treaty
Clause
of
the
U.
S.
Constitution
by
unilaterally
amending
the
Montreal
Protocol
through
a
rulemaking,
without
the
advice
and
consent
of
the
Senate."
EPA
rejects
this
characterization.
Article
2H
explicitly
assigns
to
the
Parties
the
task
of
deciding
what
level
of
production
and
consumption
"
is
necessary
to
satisfy
uses
agreed
by
them
to
be
critical
uses..."
Therefore,
EPA
looks
to
the
Parties'
Decisions
to
provide
the
details
of
the
exemption
authorized
in
Article
2H.
In
Decision
Ex
I/
3,
the
Parties
decided
what
level
of
production
and
consumption
was
necessary
given
certain
assumptions
about
stocks.
Accordingly,
in
compliance
with
Article
2H,
this
final
rule
addresses
both
production
and
consumption
and
the
use
of
stocks.

 
Another
comment
states
that
there
is
"
no
legal
basis
for
allowing
use
of
stocks
by
users
that
did
not
apply
for
or
did
not
qualify
for
critical
use
status."
[
0140­
DD]
 
This
commenter
goes
on
to
say
that
"
there
is
no
basis
for
EPA's
supposition
that
some
users
did
not
apply
for
critical
use
status
because
they
were
counting
on
use
of
stocks.
It
should
be
remembered
that
at
the
time
CUE
applications
were
due,
the
users
did
not
even
know
that
a
sizable
inventory
existed."
[
0140­
DD]

Response
#
38:
EPA
disagrees
with
the
comment
that
there
is
no
legal
basis
for
allowing
use
of
stocks
by
users
that
did
not
apply
for
or
did
not
qualify
for
critical
use
status.
Decision
Ex
I/
3(
3)
does
not
require
that
individual
Parties
prohibit
use
of
stocks
by
users
whose
uses
fall
outside
the
categories
of
agreed
critical
uses.
Nothing
in
the
Protocol
or
the
CAA
mandates
that
EPA
limit
drawdown
from
45
stocks
for
such
uses.
In
anticipating
that
some
users
did
not
apply
for
CUE
status
because
they
were
counting
on
use
of
stocks,
the
Agency
did
not
assume
that
any
user
had
special
knowledge
of
the
total
amount
of
stocks
available
but
rather
that
an
individual
user
might
have
confirmed
with
its
supplier
that
enough
methyl
bromide
would
be
available
from
that
supplier's
inventory
to
meet
the
individual
user's
limited
transitional
needs.
For
example,
some
onion
growers
in
the
southeastern
U.
S.
informed
EPA
in
their
comments
on
the
rulemaking
they
did
not
apply
for
an
exemption
because
they
intend
to
avail
themselves
of
existing
stocks.
46
4.
Summary
of
Comments
Relating
to
CAP
ON
CRITICAL
USE
METHYL
BROMIDE
Commenter
Organization
Document
ID
Number
David
Doniger
Natural
Resources
Defense
Council
(
NRDC)
0133,
0140­
DD
(
transcript
of
public
hearing),
0246
David
K.
Mueller
Pest
Managers
for
A
Better
Environment
0134
Gabriele
Ludwig
Schramm,
Williams
&
Associates,
Inc.
0137
James
Nicol
Great
Lakes
Chemical
Corporation
0140­
JN
(
transcript
of
public
hearing)
Mitch
Dubensky
American
Forest
&
Paper
Association
0140­
MD
(
transcript
of
public
hearing)
Dan
Legard
California
Strawberry
Association
0140­
DL
(
transcript
of
public
hearing)
Daren
Gee
N/
A
0140­
DG
(
transcript
of
public
hearing)
Scott
Enebak
Southern
Forest
Nursery
Management
Cooperative
0199
Richard
Matoian
California
Fig
Industry
0202
Dennis
Balint
California
Walnut
Commission
0203
Douglas
H.
Fender
Turfgrass
Producers
International
0205
Richard
Peterson
California
Dried
Plum
Board
0206
Ken
Woody
Plum
Creek
Timber
Company
0209
A.
R.
Chase
California
Cut
Flower
Commission
0210
George
Lowerts
International
Paper
0211
James
Nicol
Great
Lakes
Chemical
Corporation
0212
Wade
Purvis
Pacific
Collier
Fresh
0215
Edward
M.
Ruckert
Crop
Protection
Coalition
0219
James
A.
Bair
North
American
Millers'
Association
0220
Steve
Payne
Pet
Food
Institute
(
PFI)
0221
Daniel
A.
Botts
Florida
Fruit
&
Vegetable
Association
0223
Ann
M.
Oxford
Albemarle
Corporation
0226
Steve
Godbehere
Hendrix
and
Dale,
Inc.
0227
E.
Barclay
Poling
Southeastern
Strawberry
Consortium
0228
Gene
Harrington
National
Pest
Management
Association,
Inc.
0229
Joel
D.
Jackson
Florida
Golf
Course
Superintendents
Association
0230
Paul
Niday
TriCal,
Inc.
0231
Rex
Cunningham
Emerald
Island
Turf,
Inc.
0233
Calvin
Everette
Lewis,
Jr.
HY
Yield
Bromine,
Inc.
0242
?
AmeriBrom,
Inc.
0243
Courtney
M.
Price
et
al.
American
Chemistry
Council's
Methyl
Bromide
Industry
Panel
0245
47
Tim
Maniscalo
Dow
AgroSciences,
LLC
0247
David
Corbett
David
Corbett
Farms,
LLC
0249
Randy
DeWitt
DeWitt
Produce
Co.,
Inc.
0250
Donnie
H.
Morris
Georgia
Fruit
and
Vegetable
Growers
Association
0251
Gibbs
Patrick,
Jr.
Gibbs
Patrick
Farms,
Inc.
0252
Melvin
Mathis
MGM
Plant
Company
0253
Wilbert
Morgan
Morgan
Farms
0254
Harry
Vanderveer
Texas
Forest
Service
0255
Mark
Harrell
Florida
Strawberry
Growers
Association
0256
Don
Stringfield
MeadWestvaco
Corporation
0257
Paul
Phypers,
Jr.
Happiness
Farms,
Inc.
0259
James
W.
Wells
Environmental
Solutions
Group,
LLC
0260
 
Forty­
eight
sets
of
comments
make
reference
to
the
type
of
allocation
system
that
should
be
utilized
[
see
comments
listed
in
table
above],
where
four
of
these
specifically
refer
to
not
only
the
distribution
of
CUAs
but
also
CSAs
[
0134,
0231,
0245,
0247].
 
Twenty­
eight
commenters
express
a
preference
for
the
"
lump
sum"
or
"
universal"
allocation
method
[
0133,
0137,
0140­
JN,
0140­
DL,
0140­
DD,
0209,
0210,
0212,
0215,
0221,
0226,
0227,
0228,
0230,
0231,
0233,
0242,
0243,
0245,
0246,
0249,
0250,
0251,
0252,
0253,
0254,
0255,
0256,
0257,
0259].
 
The
"
sector­
specific"
approach
is
the
allocation
method
preferred
by
four
commenters
[
0140­
MD,
0199,
0211,
0247].
 
One
commenter
believes
that
the
"
applicant­
specific"
approach
would
be
the
best
way
of
distributing
CUAs
and
CSAs
[
0134].
 
Three
commenters
"
recommend
the
application
specific
or
sector
by
sector
allocation
procedure
with
full
flexibility
to
trade
as
the
preferred
approach."
[
0202,
0203,
0206]
 
In
three
sets
of
comments,
the
preferred
allocation
method
is
dependent
on
the
availability
of
existing
stocks.
These
commenters
state
that
"
if
existing
stocks
are
fully
available
to
whomever
needs
them,
including
CUE
holders,
then
a
lump
sum
allocation
system
would
be
appropriate."
On
the
other
hand,
"
if
the
restrictions
on
access
to
existing
stocks
are
applied
to
CUE
holders,
then
the
Agency
should
allocate
CUE
amounts
on
a
sector­
by­
sector
basis."
[
0219,
0220,
0223]
 
Finally,
three
commenters
do
not
specify
a
preferred
allocation
method
but
rather
request
that
EPA
adopts
an
allocation
system
that
is
"
fair,
easy
for
growers
to
understand,
and
do[
es]
not
create
substantial
burdens
for
growers
already
feeling
the
impact
of
increased
fumigation
costs
and
regulations"
[
0140­
DG],
that
"
permits
members
of
NPMA's
consortium
complete
access
to
the
full
amount
for
which
they
have
applied
and
received
approval
from
the
Parties"
[
0229]
and
that
"
be
as
open
as
possible
with
minimal
barriers"
[
0260].
48
Response
#
39:
The
Agency
believes,
and
has
received
comment
to
that
effect,
that
the
pre­
plant
and
post­
harvest
markets
operate
as
separate
markets
under
the
phaseout,
as
evidenced
by
the
different
prices
for
methyl
bromide
in
the
two
markets,
for
several
reasons.
The
timing
and
cycles
of
fumigations
for
the
two
sectors
are
different
as
well.
Pre­
plant
fumigations
typically
occur
once
a
year
about
a
month
before
planting
the
first
crop
whereas
fumigations
for
post­
harvest
uses
occur
routinely
throughout
the
year
to
control
ongoing
insect
pressures.
The
standard
product
formulations
for
pre­
plant
and
post
harvest
uses
substantially
differ.
In
the
pre­
plant
uses
the
formulations
of
methyl
bromide
contain
substantially
more
chloropicrin,
as
much
as
50%.
Lastly,
the
post
harvest
sector
has
more
purchasing
power
than
the
pre­
plant
sector
and
is
therefore
willing
to
pay
more
for
methyl
bromide.
Post­
harvest
uses
rely
on
nearly
pure
methyl
bromide.
For
all
of
these
reasons,
EPA
believes
that
these
two
use
categories
already
function
as
separate
markets
and
therefore
the
hybrid
option
would
not
result
in
substantial
regulatory
burden
but
would
achieve
a
careful
balance
between
flexibility
and
greater
assurance.
In
today's
rulemaking,
EPA
is
establishing
two
caps
on
new
critical
production/
import:
one
cap
for
pre­
plant
soil
uses
and
a
second
cap
for
post­
harvest
and
structural
uses.
The
portion
of
the
critical
use
methyl
bromide
supplies
obtained
from
available
stocks
however
will
have
a
universal
cap
as
proposed.
EPA
did
not
receive
any
adverse
comment
on
the
proposal
to
make
the
quantities
from
stocks
available
in
a
universal
fashion.

 
The
reasons
given
as
to
why
the
"
lump
sum"
or
"
universal"
allocation
method
should
be
the
preferred
approach
are
listed
below.
 
One
of
the
reasons
cited
by
those
in
favor
of
the
"
lump
sum"
method
is
that
this
approach
would
the
most
effective
in
terms
of
getting
the
methyl
bromide
to
those
who
needed
it.
[
0133,
0140­
DD,
0221,
0246]
As
stated
by
one
commenter,
the
"
lump
sum"
approach
overcomes
the
"
risk
for
users
that
there
will
be
methyl
bromide
surpluses
in
some
use
categories
and
shortages
in
others."
[
0133,
0140­
DD,
0246]
 
Another
reason
given
in
support
of
the
"
lump
sum"
approach
is
that
it
provides
flexibility
while
ensuring
that
the
total
amount
of
methyl
bromide
authorized
by
the
Parties
is
not
exceeded
[
0133,
0140­
DD,
0140­
JN,
0231,
0246]
 
A
number
of
commenters
support
the
"
lump
sum"
approach
on
the
basis
that
it
would
be
the
easiest
to
administer,
the
least
burdensome
on
distributors
and
growers,
and
the
most
consistent
with
the
current
allowance
system
[
0140­
JN,
0212,
0221,
0226,
0228,
0231,
0245].
 
One
commenter
in
favor
of
the
"
lump
sum"
allocation
method
argues
that
"
the
short
time
remaining
between
now
and
January
1,
2005
makes
any
other
approach
impossible
to
implement."
[
0210]
Further,
one
commenter
states
that
"
to
change
the
market
would
cause
confusion,
higher
cost
to
both
distributors
and
the
grower,
and
very
possibly
prevent
access
to
MB
that
CUE
users
have
been
awarded
by
the
parties."
[
0227]
49
Response
#
40:
EPA
agrees
with
some
of
the
comments
made
by
entities
supporting
the
universal
option
and
believes
that
such
a
system
would
in
fact
lead
to
the
most
economically
efficient
outcome
and
impose
the
least
burden
on
industry.
However,
to
address
concerns
raised
by
smaller,
less
frequent
and
end
of
year
uses,
EPA
is
separating
out
the
post­
harvest
uses
of
methyl
bromide,
which
can
typically
pay
more
per
fumigation,
from
pre­
plant
uses.

 
The
supporting
arguments
of
those
in
favor
of
the
"
sector­
specific"
allocation
method
are
given
below.
 
One
commenter
supports
the
"
sector­
specific"
approach
on
the
basis
that
"
it
rewards
the
sectors
and
individuals
who
played
by
the
rules
and
submitted
and
gathered
data
and
information
and
submitted
it
to
EPA."
[
0140­
MD)
 
Another
reason
given
for
supporting
the
"
sector­
specific"
approach
is
that
it
assigns
the
methyl
bromide
by
sector
as
requested
by
the
Montreal
TEAP
Report
[
0140­
MD].
 
Finally,
the
"
sector­
specific"
approach
is
supported
on
the
basis
that
it
would
guarantee
that
members
of
each
sector
had
a
pool
of
methyl
bromide
to
draw
upon
and,
unlike
the
"
lump
sum"
allocation
method,
would
ensure
that
methyl
bromide
stocks
would
still
be
available
for
approved
users
late
in
a
growing
season
at
a
reasonable
cost
[
0211].

Response
#
41:
Noting
that
Decision
Ex
I/
3
(
4)
states
that
Parties
"
should
endeavor"
to
allocate
"
as
listed
in
annex
II
A,"
EPA
examined
our
ability
to
implement
a
sector
specific
system.
However,
there
are
several
practical
impediments
to
implementing
such
a
system.
EPA
does
not
have
precise
data
on
use
of
methyl
bromide
because
the
current
regulations
on
methyl
bromide
require
reporting
of
production,
imports,
and
exports
of
methyl
bromide,
not
use.
The
more
specific
the
categories
for
which
EPA
is
estimating
use,
the
less
precise
the
estimate
becomes.
Therefore,
EPA
is
reluctant
to
create
sector
or
applicant
specific
limits
because
of
the
inherent
uncertainty
of
the
data
at
that
detailed
level.
With
the
establishment
of
the
critical
use
exemption,
EPA
will
begin
to
track
sector
level
use
data
and
therefore
the
concern
about
data
viability
should
diminish
over
time.
Another
limitation
to
the
sector
or
applicant
specific
approach
is
the
upstream
allowance
allocation
system
itself
where
EPA
issues
allowances
to
producers
and
importers
and
not
end
users.
Using
an
upstream
allowance
allocation
system
as
proposed,
EPA
would
be
unable
to
adjust
amounts
of
methyl
bromide
from
one
sector
to
another
after
the
allowance
was
expending
expended.
This
artifact
of
the
allocation
framework
would
deny
the
marketplace
any
flexibility
to
meet
unforeseen
demand
in
a
particular
use.
For
example,
under
a
sector
specific
system,
if
a
pest
outbreak
were
to
occur
in
the
peppers
sector
no
additional
material
could
be
made
available
to
peppers
even
if
there
were
an
unanticipated
surplus
in
a
different
sector.
For
these
reasons,
EPA
believes
it
is
not
practicable
to
implement
a
sector
specific
system
at
this
time.
By
virtue
of
this
rulemaking
process,
EPA
has
made
the
endeavor
to
allocate
quantities
of
methyl
bromide
in
a
manner
consistent
with
Annex
IIA
of
the
Report
to
the
First
Extraordinary
Meeting
of
the
Parties.
Because
of
the
practical
and
50
administrative
difficulties
described
above,
however,
EPA
has
arrived
at
an
allocation
system
that
relies
at
least
partly
on
the
market
to
allocate
quantities
on
a
sectoral
basis.
EPA
anticipates,
based
on
historical
use
patterns
and
the
research
undertaken
pursuant
to
submitting
the
U.
S.
nomination,
that
usage
patterns
will
generally
reflect
the
sectoral
quantities
found
in
Annex
IIA.

 
It
is
to
be
noted
that
a
number
of
commenters
were
critical
of
the
"
sector­
specific"
approach
[
0212,
0231,
0242,
0245].
 
The
common
criticism
was
that
the
"
sector­
specific"
approach
would
be
overly
complex,
difficult
to
implement,
unnecessarily
restrictive
and
offer
no
advantages
over
the
"
lump­
sum"
approach
[
0212,
0231,
0245].
 
One
commenter
also
notes
that
a
"
sector­
specific"
approach
would
create
problems
in
the
distribution
chain.
The
commenter
explains:
"
Currently,
methyl
bromide
is
commonly
shipped
from
producers/
importers
to
distributors
in
bulk
vessels
containing
from
35,000
to
180,000
pounds.
It
is
then
formulated
with
varying
amounts
of
chloropicrin
(
depending
on
pests,
soil
types,
etc.)
and
packaged
in
smaller
containers.
The
product
is
then
delivered
to
dealers
and
end
users.
This
system
has
proven
to
be
efficient
because
it
simplifies
distribution
and
reduces
the
number
of
returnable
containers.
However,
with
a
sector­
specific
approach,
product
could
not
be
neatly
divided
into
container­
sized
lots
because
an
individual
container
might
contain
product
designated
for
several
sectors"
and
because
doing
so
would
require
the
distributor
to
somehow
ascertain
if
the
product
out
of
the
container
was
accurately
divvied
up
between
the
appropriate
sectors.
[
0231]

Response
#
42:
EPA
agrees
that
the
sector­
specific
approach
is
not
the
most
practicable
approach
and
therefore
is
implementing
a
hybrid
approach
as
mentioned
above
in
response
#
41.

 
The
commenter
in
favor
of
the
"
applicant­
specific"
allocation
method
states
that
"
the
cost
of
administering
these
CUEs
[
both
CUA
and
CSAs]
is
not
the
real
hardship"
and
it
is
"
necessary
to
implement
a
fair
and
accurate
allocation
of
exemptions"
and
"
anything
except
applicant­
specific
allocation
is
only
allowing
for
the
increased
use
of
MB
rather
than
the
restricted
phaseout
of
MB."
[
0134]

Response
#
43:
EPA
does
not
believe
that
an
applicant
specific
system
is
necessary
to
meet
our
Protocol
obligations
or
to
ensure
fairness.
An
applicant
specific
system
is
in
fact
a
level
of
detail
greater
than
the
categories
listed
in
the
Decision
itself.
The
commenter
believes
that
the
applicant
specific
system
is
more
fair
because
it
is
the
only
system
that
doesn't
allow
for
the
increased
use
of
methyl
bromide
and
is
thus
more
fair
to
those
entities
that
are
transitioning
out
of
methyl
bromide.
EPA
does
not
believe
that
an
applicant
specific
system
would
result
less
use
of
methyl
bromide,
as
the
finding
of
critical
need
is
separate
and
apart
from
the
specific
distribution
mechanism
used
in
the
regulatory
framework.
EPA
does
not
understand
why
the
51
commenter
believes
that
any
system
apart
from
the
applicant
specific
allocation
would
allow
for
increased
use
of
methyl
bromide.

 
One
commenter
is
critical
of
the
"
applicant­
specific"
approach
on
the
basis
that
it
would
be
even
more
complicated
than
the
"
sector­
specific"
approach
because
the
allocations
would
be
divided
into
51
sectors
[
0231].

Response
#
44:
EPA
believes
that
dividing
allowances
into
51
types
or
more
would
make
for
a
highly
complex
market
and
create
additional
burden
above
what
is
required
to
meet
Protocol
obligations.

 
The
two
hybrid
options
proposed
by
EPA
are
criticized
on
the
basis
that,
like
the
"
sector­
specific"
and
"
applicant­
specific"
approaches,
they
would
be
"
overly
complicated,
burdensome
and
potentially
unmanageable"
and
that
they
would
create
the
same
commercial/
supply
difficulties
associated
with
the
"
sector­
specific"
and
"
applicant­
specific"
approaches
[
0231].

Response
#
45:
EPA
believes
that
there
is
a
tradeoff
to
be
made
between
simplicity
and
assurance
and
that
any
option
selected
would
involve
giving
up
some
benefit
in
exchange
for
another
benefit.
A
completely
flexible
system
such
as
a
universal
allocation
scheme
would
be
the
most
simple
option
to
administer
(
hence
the
least
burdensome)
but
would
offer
different
commodity
groups
the
least
level
of
certainty
regarding
the
amounts
of
exempted
material
available
to
them.
An
applicant
specific
system
would
be
the
most
complex
option
to
administer
but
would
offer
the
greatest
assurances
on
amounts
of
exempted
material
available
to
them.
In
addition,
with
greater
assurance
comes
more
rigidity
by
definition.
Should
an
unforeseen
outbreak
of
a
pest
occur,
under
a
rigid
system,
there
would
be
no
ability
for
the
commodity
group
to
exceed
the
amount
carved
out
for
that
use
group.
Given
a
number
of
reasons
(
please
see
responses
#
39
and
#
41)
EPA
selected
a
hybrid
option
that
emphasizes
flexibility
but
provides
some
assurances
to
address
the
needs
of
late
year,
small
fumigation
uses.
The
option
provides
some
assurance
without
being
overly
burdensome
or
complicated.
52
5.
Summary
of
Comments
Relating
to
CRITICAL
USE
ALLOWANCE
ALLOCATIONS
5.
a.
Baseline
for
critical
use
allowance
distribution
Commenter
Organization
Document
ID
Number
James
Nicol
Great
Lakes
Chemical
Corporation
0140­
JN
(
transcript
of
public
hearing)
Mitch
Dubensky
American
Forest
&
Paper
Association
0140­
MD
(
transcript
of
public
hearing)
James
Nicol
Great
Lakes
Chemical
Corporation
0212
Ann
M.
Oxford
Albemarle
Corporation
0226
Steve
Godbehere
Hendrix
and
Dale,
Inc.
0227
E.
Barclay
Poling
Southeastern
Strawberry
Consortium
0228
Calvin
Everette
Lewis,
Jr.
HY
Yield
Bromine,
Inc.
0242
?
AmeriBrom,
Inc.
0243
Eight
commenters
express
an
opinion
with
regards
to
the
method
for
critical
use
allowance
distribution
[
0140­
JN,
0140­
MD,
0212,
0226,
0227,
0228,
0242,
0243].
Four
commenters
are
in
favor
of
the
distribution
of
critical
use
allowances
(
CUAs)
to
producers
and
importers
on
a
pro­
rata
basis
using
the
1991
baseline
allowances
[
0140­
JN,
0212,
0227,
0228].
A
preference
for
a
distribution
system
for
CUAs
based
on
recent
market
share
data
is
expressed
by
two
commenters
[
0140­
MD,
0242].
The
final
two
commenters
support
the
"
equal
shares"
approach
to
distributing
CUAs
[
0226,
0243].

The
commenters
supporting
the
allocation
of
CUAs
based
on
the
1991
baseline
method
do
so
for
either
or
both
of
the
reasons
given
below
[
0140­
JN,
0121,
0227,
0228].
One
reason
given
by
three
commenters
is
that
using
the
1991
baseline
method
is
consistent
with
the
current
approach
and
that
this
approach
seems
to
work
well
[
0140­
JN,
0227,
0228].
One
commenter
remarks
"
using
the
1991
historic
baseline
method
for
distributing
CUAs
is
consistent
with
how
the
EPA
has
allocated
methyl
bromide
production
and
consumption
allowances
for
the
past
decade
under
the
methyl
bromide
phaseout,
and
this
approach
has
met
with
a
very
high
level
of
approval."
[
0228]
One
commenter
also
supports
the
1991
baseline
method
on
the
basis
that
it
"
is
a
better
reflection
of
market
share
than
simply
dividing
the
number
of
allowances
by
the
total
number
of
entities,
and
would
be
less
burdensome
than
conducting
a
detailed
recent
historical
market
share
analysis
on
an
annual
basis."

Response
#
46
:
EPA
is
using
the
1991
methyl
bromide
consumption
baseline
for
distribution
of
critical
use
allowances
because
this
is
the
best
data
available
to
the
Agency
at
the
current
time.
EPA
used
the
1991
baseline
53
to
distribute
allowances
to
the
companies
listed
above
during
the
phaseout
of
methyl
bromide.
The
1991
baseline
is
therefore
familiar
to
the
regulated
community
and
poses
the
least
steep
learning
curve
on
industry
of
all
the
options
discussed
in
the
proposed
rule.

 
Two
commenters
object
to
the
use
of
the
1991
baseline
method
[
0226,
0243].
 
One
commenter,
representing
the
manufacturer
AmeriBrom,
strongly
opposes
the
1991
baseline
method
on
the
basis
that
it
would
greatly
disadvantage
Ameribrom
by
not
capturing
its
true
activity
in
the
marketplace.
Specifically,
according
to
the
commenter,
"
basing
the
allocation
on
1991
baseline
levels
does
not
capture
an
accurate
picture
of
AmeriBrom's
position
in
the
marketplace
because
AmeriBrom
supplies
a
much
greater
amount
of
methyl
bromide
than
the
total
amount
of
allowances
it
holds."
[
0243]
Similarly,
the
other
commenter
believes
that
"
the
1991
baseline
consumption
levels
no
longer
provide
a
fair
allotment
of
allowances
because
supply
conditions
have
changed
significantly
since
1991."
[
0226]

Response
#
47:
EPA
understands
that
market
share
may
have
changed
since
1991.
This
is
one
of
the
reasons
why
the
Agency
is
a
proponent
of
market
based
mechanisms
where
appropriate.
Instead
of
implementing
a
command
and
control
approach
where
EPA
permits
a
certain
level
of
production
or
import
for
each
entity,
EPA
is
creating
an
allowance
trading
system
where
entities
can
buy
or
sell
allowances
to
reflect
their
desired
level
of
activity
in
the
marketplace.
EPA
simply
does
not
have
more
current
data
and
does
not
have
time
to
obtain
such
data
for
this
rulemaking.

 
One
commenter
is
in
favor
of
using
the
baseline
method
based
on
recent
market
share
data
for
the
simple
reason
that
it
would
be
more
current
[
0140­
MD],
while
the
other
commenter
favoring
this
approach
asserts
that
it
would
result
in
the
fairest
allocation
of
CUAs
[
0242].

Response
#
48:
EPA
does
not
have
complete
volume
material
on
market
data
past
1991.
Basing
the
distribution
on
the
consumption
baseline
from
1991
would
reflect
the
most
accurate
data
that
the
Agency
has,
and
therefore
would
reflect
the
fairest
allocation
of
CUAs.
EPA
simply
does
not
have
more
current
data
and
does
not
have
time
to
obtain
such
data
for
this
rulemaking.

 
Two
commenters
are
critical
of
the
use
of
an
updated
baseline
method
for
the
distribution
of
CUAs
[
0212,
0226].
 
One
commenter
believes
that
"
allocation
of
CUAs
based
on
current
market
share
would
be
the
best
option
but
agrees
with
EPA
that
it
is
not
practical
because
there
is
not
enough
time
or
data
to
generate
a
new
baseline."
[
0226]
 
The
other
commenter
is
of
the
opinion
with
regards
to
replacing
the
1991
baseline
method
with
one
based
on
recent
market
share
data
that
"
the
difficult
exercise
of
collecting
and
analyzing
historic
marketing
data
would
54
not
result
in
a
significant
change
in
the
CUA
distribution
as
compared
to
reliance
on
1991
baseline
data."
[
0212]
Response
#
49:
EPA
believes
that
using
the
1991
consumption
baseline
reflects
the
best
quality
data
available
to
EPA
and
allows
for
this
final
rule
to
be
published
in
a
timely
fashion.
EPA
does
not
have
data
on
the
volume
of
marketed
material
for
a
year
other
than
1991.

 
The
reasons
given
for
supporting
the
"
equal
shares"
approach
include
that
it
would
be
the
simplest,
not
place
a
burden
on
government
or
industry,
be
fair
in
terms
of
ensuring
a
level
playing
field
and,
contrary
to
EPA's
assertion,
would
clearly
align
allowances
with
current
market
shares
[
0226,
0242,
0243].

Response
#
50:
EPA
believes
that
the
equal
shares
approach
would
create
a
distorted
picture
of
the
current
market
since
the
Agency
believes
it
is
highly
unlikely
that
all
companies
have
equal
market
share.

 
One
commenter
argues
strongly
against
dividing
CUAs
equally
among
the
four
entities
holding
production
and
consumption
allowances
on
the
basis
that
"
such
an
arbitrary
approach
would
drastically
distort
current
market
shares,
and
would
create
significant
excess
capacity
at
some
entities,
while
others
would
struggle
to
supply
the
increased
share."
[
0212]

Response
#
51:
EPA
agrees
that
the
equal
share
approach
would
distort
current
market
shares
and
is
adopting
the
1991
baseline
approach
as
mentioned
above.
55
5.
b.
Frequency
of
critical
use
allowance
distribution
Commenter
Organization
Document
ID
Number
David
K.
Mueller
Pest
Managers
for
A
Better
Environment
0134
A.
R.
Chase
California
Cut
Flower
Commission
0210
Courtney
M.
Price
et
al.
American
Chemistry
Council's
Methyl
Bromide
Industry
Panel
0245
 
One
commenter
requests
multiple
year
CUEs
because
the
speed
with
which
new
products
are
developed
and
the
cost
of
trials,
industry
education,
and
implementation
make
single
year
CUEs
inappropriate
[
0210].

Response
#
52:
Multi­
year
exemptions
may
only
be
permitted
should
the
Parties
choose
to
authorize
multi­
year
exemptions.
At
this
time,
the
U.
S.
has
only
received
an
annual
exemption
and
is
therefore
not
in
a
position
to
implement
a
multi­
year
exemption.

 
One
commenter
believes
that
multiple
year
exemptions
would
be
a
large
disincentive
for
future
research
and
development
of
technical
and
economically
feasible
alternatives
to
methyl
bromide
[
0134].

Response
#
53:
Multi­
year
exemptions
may
only
be
permitted
should
the
Parties
choose
to
authorize
multi­
year
exemptions.
At
this
time,
the
U.
S.
has
only
received
an
annual
exemption
and
is
therefore
not
in
a
position
to
implement
a
multi­
year
.

 
One
commenter,
noting
that
the
NPRM
does
not
discuss
the
timing
for
determining
and
distributing
CUAs
and
CSAs
for
an
upcoming
control
period,
states
that
CUAs
and
CSAs
should
be
set
and
distributed
to
producers/
importers/
distributors
annually
at
least
six
weeks
before
the
end
of
the
year
to
allow
sufficient
time
for
production
and
importation
planning.
To
avoid
a
situation
in
which
regulatory
delays
lead
to
allowances
not
being
granted
before
an
upcoming
control
period,
this
commenter
recommends
that
the
NPRM
set
a
deadline
by
which
EPA
must
complete
the
necessary
steps
for
granting
CUAs
and
CSAs
for
each
year.

This
commenter
agrees
with
EPA
regarding
the
disadvantages
of
two
rulemakings
each
year.
In
the
event
that
CSA
are
included
as
part
of
the
final
rule,
this
commenter
favors
a
"
fiscal
year"
approach
as
long
as
it
was
combined
with
a
correction
mechanism
that
could
account
for
any
differences
between
stocks
at
the
end
of
the
fiscal
and
calendar
year
[
0245].

Response
#
54:
EPA
will
not
establish
a
deadline
for
the
date
of
annual
allowance
allocation
simply
because
EPA
can
not
predict
the
exact
timing
of
key
decision
points
in
the
process
such
as
a
decision
from
the
Parties,
the
date
of
publication
of
a
proposed
rule
etc.
56
EPA
is
implementing
a
system
where
allowances
are
only
distributed
once
a
year,
with
the
exception
of
distributions
reflecting
supplemental
authorizations
by
the
Parties.
EPA's
method
for
addressing
the
issuance
of
CSAs
to
reflect
actual
use
in
the
previous
control
period,
is
dealt
with
in
response
to
comments
in
section
10
c
of
this
document.
57
6.
Summary
of
Comments
Relating
to
CRITICAL
STOCK
ALLOWANCE
ALLOCATIONS
Commenter
Organization
Document
ID
Number
Paul
Niday
TriCal,
Inc.
0231
?
AmeriBrom,
Inc.
0243
Courtney
M.
Price
et
al.
American
Chemistry
Council's
Methyl
Bromide
Industry
Panel
0245
Tim
Maniscalo
Dow
AgroSciences,
LLC
0247
John
Sansone
Cardinal
Professional
Products
0248
Gene
Harrington
National
Pest
Management
Association
0229
 
Two
commenters
request
that,
if
it
is
the
case
that
existing
stocks
are
to
be
regulated,
EPA
establish
a
formula
or
distributional
system
for
critical
stock
allowances
(
CSAs)
whereby
existing
inventory
will
be
utilized
within
a
reasonable
time
frame
[
0231,
0248].

Response
#
55:
EPA
is
issuing
CSAs
in
a
timely
fashion
to
ensure
that
inventory
holders
can
sell
methyl
bromide
for
approved
critical
uses,
should
they
choose
to,
starting
January
1,
2005.
In
regard
to
the
timeframe
for
use
of
existing
stocks
in
the
marketplace,
EPA
does
not
control
the
rate
of
use
of
the
product.
We
anticipate
that
users
will
obtain
existing
inventories
at
the
rate
the
market
demands
them.

 
One
commenter
is
in
favor
of
EPA's
proposal
to
allocate
CSAs
on
a
pro­
rated
basis
for
all
entities
identifying
available
stocks
under
the
Section
114
data
request
on
the
basis
that
it
will
enable
EPA
to
keep
track
of
methyl
bromide
intended
for
sale
in
2005
and
beyond
consistent
with
Decision
Ex.
IX/
6
of
the
Montreal
Protocol.

Response
#
56:
EPA
will
issue
CSAs
on
a
pro­
rata
basis
to
each
owner
of
prephaseout
inventories
of
methyl
bromide
relative
to
the
proportion
of
the
total
known
pre­
phaseout
inventory
each
entity
owns.
The
amount
that
each
entity
owns
will
be
calculated
as
of
an
average
of
their
December
31,
2003
and
August
25,
2004
level
of
stocks.
If
Company
A
owns
10%
of
the
known
pre­
phaseout
inventory
on
average,
then
Company
A
will
receive
10%
of
the
total
number
of
CSAs
EPA
distributes
for
2005.
Please
see
the
memo
titled
"
EPA's
Methodology
for
Calculating
Critical
Stock
Allowances
(
CSAs)"
dated
December
15,
2004
in
the
docket.

 
Another
commenter
asks
that,
rather
than
assign
CSAs
on
a
pro­
rata
basis
relative
to
the
amount
of
existing
stocks
each
supplier
holds,
EPA
allocate
CSAs
equally
among
those
entities
that
have
submitted
information
to
EPA
on
their
unrestricted
stocks
of
methyl
bromide
[
0243].
 
The
commenter
argues
that
it
would
not
be
fair
to
allocate
CSAs
based
on
the
arbitrary
dates
of
December
31,
2003
and
August
25,
2004
selected
by
EPA
for
establishing
stock
levels,
and
that
the
simplest
approach
in
this
58
instance
would
be
to
allocate
CSAs
equally
thereby
creating
a
level
playing
field
[
0243].

Response
#
57:
EPA
did
not
describe
an
alternative
approach
in
the
proposed
rule
for
distribution
on
CSAs.
Although
the
dates
of
December
31,
2003
and
August
25,
2004
are
snapshots
in
time
and
do
not
provide
EPA
with
a
full
understanding
of
average
levels
of
inventory
held
by
a
given
entity,
EPA
believes
this
data
is
more
representative
than
simply
dividing
the
number
of
allowances
by
the
number
of
entities.
EPA
believes
it
is
unreasonable
to
assume
that
stocks
are
owned
in
roughly
equal
amounts
by
all
entities
in
the
supply
chain
which
is
the
assumption
one
would
have
to
make
to
argue
that
such
an
allocation
system
would
be
fair.
Furthermore,
EPA
is
creating
a
tradable
allowance
system
with
this
rulemaking
that
would
allow
an
entity
to
acquire
additional
CSAs
from
another
allowance
holder.

 
One
set
of
comments
simply
states
that
it
agrees
with
EPA's
proposal
to
grant
CSAs
to
producers,
importers
and
distributors
of
methyl
bromide.
Indeed,
the
commenter
notes
that
the
other
options
outlined,
such
as
using
an
auction
system,
seemed
"
unworkable,
overly
complex
and
otherwise
problematic
for
a
number
of
reasons."
[
0245]

Response
#
58:
EPA
concurs
that
granting
CSAs
to
producers,
importers
and
distributors
of
methyl
bromide
is
the
simplest
and
most
practical
approach.

 
One
commenter
is
concerned
that
EPA
"
did
not
consult
with
state
lead
agencies
to
see
if
it
is
permissible
for
a
commercial
applicator
such
as
a
pest
management
professional
to
sell
or
otherwise
transfer
existing
stocks
of
a
restricted
use
pesticide
like
methyl
bromide
to
a
dealer,
distributor,
producer
or
an
approved
critical
user
without
a
dealer's
license."
[
0229]
 
The
commenter
states
that,
throughout
the
document,
EPA
"
talks
about
entities
with
existing
stocks
of
methyl
bromide
simply
transferring
such
stocks
to
critical
stock
allowance
holders,
such
as
end
users
or
third
party
applicators..."
The
commenter's
concern
is
that
"
many
states
require
a
person
or
entity
to
have
a
dealer's
license
to
sell
or
distribute
a
restricted
use
product
like
methyl
bromide
to
another
authorized
entity"
and
that
"
most
commercial
applicators
with
existing
stocks
are
not
licensed
dealers
and
will
not
be
able
to
legally
sell
or
distribute
methyl
bromide
to
others."
[
0229]
 
The
commenter
goes
on
further
to
ask
"
if
such
stocks
are
disposed
or
to
a
state
lead
agency
during
a
collection
initiative,
how
will
this
methyl
bromide
be
counted
or
otherwise
accounted
for?"
and
then
"
will
the
state
be
permitted
to
sell
or
otherwise
distribute
the
methyl
bromide
to
an
allowance
holder?"
[
0229]

Response
#
59:
The
commenter
appears
to
have
misunderstood
the
intent
of
the
rule.
In
today's
rule,
EPA
is
allowing
for
trading
of
critical
stock
allowances,
but
is
not
removing
any
existing
requirements,
such
as
the
requirement
to
have
a
dealer's
license,
that
might
apply
to
sale
of
the
actual
stocks
themselves.
This
rule
does
not
59
alter
any
existing
federal,
state,
or
local
pesticide
requirements.
In
addition,
if
an
entity
acquires
CSAs
but
is
not
allowed
to
actually
sell
methyl
bromide
for
some
reason,
that
entity
may
sell
its
CSAs
to
another
entity
and
receive
a
revenue.
60
7.
Summary
of
Comments
Relating
to
TRADING
ALLOWANCES
7.
a.
Trading
within
allowance
type
Commenter
Organization
Document
ID
Number
David
K.
Mueller
Pest
Managers
for
A
Better
Environment
0134
Gabriele
Ludwig
Schramm,
Williams
&
Associates,
Inc.
0137
Richard
Matoian
California
Fig
Industry
0202
Dennis
Balint
California
Walnut
Commission
0203
Richard
Peterson
California
Dried
Plum
Board
0206
George
Lowerts
International
Paper
0211
James
Nicol
Great
Lakes
Chemical
Corporation
0212
Edward
M.
Ruckert
Crop
Protection
Coalition
0219
Daniel
A.
Botts
Florida
Fruit
&
Vegetable
Association
0223
Steve
Godbehere
Hendrix
and
Dail,
Inc.
0227
Paul
Niday
TriCal,
Inc.
0231
Courtney
M.
Price
et
al.
American
Chemistry
Council's
Methyl
Bromide
Industry
Panel
0245
Tim
Maniscalo
Dow
AgroSciences
0247
 
Two
commenters
support
trading
of
CUAs
and
CSAs
[
0245,
0227]
 
One
commenter
noted,
however,
that
"
if
EPA
decides
to
go
forward
with
a
sector­
specific
approach,
the
rule
should
permit
entities
to
trade
CUAs
and
CSAs
between
sectors."
[
0245]

Response
#
60:
In
today's
rule,
EPA
is
not
implementing
a
sector
specific
system.
EPA
is
not
allowing
for
trades
of
CUAs
from
pre­
plant
to
post
harvest
or
vice
versa
because
EPA
believes
that
it
is
introducing
sufficient
flexibility
by
allowing
trades
within
these
groupings
while
being
mindful
of
the
need
to
provide
as
much
certainty
as
possible
regarding
the
availability
of
methyl
bromide
for
critical
uses.
Since
these
allowances
would
have
to
be
traded
before
they
are
expended
(
before
methyl
bromide
is
produced
or
imported)
companies
that
would
trade
post
harvest
allowances
into
preplant
allowances
would
be
doing
so
based
on
a
projection
of
market
demand,
not
in
response
to
real
time
market
forces
as
would
be
the
case
in
allowing
trading
of
downstream
allowances
to
end
users.
Again,
EPA
anticipates,
based
on
historical
use
patterns
and
the
research
undertaken
pursuant
to
submitting
the
U.
S.
nomination,
that
usage
patterns
will
generally
reflect
the
sectoral
quantities
found
in
Annex
IIA
thus
additional
flexibility
to
allow
further
trading
between
pre­
plant
and
post­
harvest
uses
does
not
appear
to
be
warranted.
Further,
should
the
Agency
allow
complete
flexibility
to
trade
allowances
between
pre­
plant
and
post
harvest
uses,
it
could
render
the
creation
of
two
caps
virtually
meaningless.
EPA
is
allowing
entities
to
trade
CUAs
in
for
additional
CSAs
and
since
CSAs
are
universal,
in
this
instance
the
Agency
is
permitting
trading
of
a
more
specific
allowance
(
the
pre­
plant
or
post­
harvest
CUA)
for
a
more
general
allowance
61
(
the
universal
CSA).
EPA
is
allowing
this
transaction
as
an
incentive
to
drawdown
additional
stocks
in
lieu
of
new
production
which
would
have
a
benefit
to
the
environment
by
reducing
the
number
of
molecules
of
ozone
depleting
substances
created.

 
Seven
commenters
supported
trading
within
allowance
type
[
0202,
0203,
0206,
0212,
0219,
0231,
0245]
 
Two
commenters
noted
that
Decision
Ex
I/
3
asks
the
Parties
to
"
endeavor
to
allocate
the
quantities
of
methyl
bromide
recommended."
[
0231,
0245]
 
Three
commenters
stated
that
trading
excessive
CUE
material,
either
through
applicant
specific
or
sector
by
sector
approach,
seemed
consistent
with
the
Montreal
Protocol
and
the
"
Parties'
decisions
that
commodities
successful
proving
their
critical
need
get
access
to
the
full
amount
approved
and
also
have
the
flexibility
to
trade
with
other
commodities
and
sectors
as
long
as
they
stay
within
the
overall
35%
of
the
1991
baseline
levels
plus
stocks."
[
0202,
0203,
0206]
 
One
commenter
supported
trading
of
CUAs,
continuing
the
flexibility
entities
have
had
under
current
regulations.
[
0212]
 
One
commenter
wrote
that
"
there
is
no
rational
basis
to
preclude
trading."
[
0219]

Response
#
61:
EPA
concurs
that
a
trading
system
has
merits
and
is
consistent
with
the
CAA
.
Section
607
paragraph
(
c)
of
the
Clean
Air
Act
Amendments
of
1990
(
CAAA),
allows
EPA
to
create
trading
mechanisms
so
long
as
there
is
a
benefit
to
the
environment.
In
accordance
with
paragraph
(
c)
of
Section
607
of
the
CAAA,
EPA
is
establishing
an
offset
of
one
tenth
of
one
percent
of
the
amount
of
the
CUAs
transferred
consistent
with
the
proposed
rule.
Decision
Ex
I/
3(
4)
states:
"
That
Parties
should
endeavor
to
allocate
the
quantities
of
methyl
bromide
recommended
by
the
Technology
and
Economic
Assessment
Panel
as
listed
in
annex
II
A
to
the
report
of
the
First
Extraordinary
Meeting
of
the
Parties."
As
discussed
in
section
4
of
this
document,
EPA
believes
it
is
not
practicable
to
implement
a
sector
specific
system
and
concludes
that
establishing
distinct
caps
for
pre­
plant
and
post­
harvest
uses
is
consistent
with
the
quoted
language
from
Decision
Ex
I/
3(
4).

 
One
commenter
did
not
support
the
trading
of
CUAs
between
sectors
[
0134]
 
This
commenter
stated
that
the
purpose
of
the
rule
is
to
limit
the
amount
of
methyl
bromide
used
and
that
trading
allows
use
of
methyl
bromide
to
expand
and
when
someone
reduces
or
eliminates
the
need
for
a
CUA,
the
methyl
bromide
amount
should
be
gone.
This
commenter
also
asserted
that
the
approval
timeframe
of
three
working
days
of
receipt
by
the
EPA
for
trades
would
never
work
and
that
automatic
approval
would
always
occur,
meaning
that
methyl
bromide
could
be
moved
freely
about
the
country
[
0134]

Response
#
62:
EPA
believes
that
this
comment
is
perhaps
more
applicable
not
to
the
CUA
system
of
upstream
production
allowances
but
to
the
downstream
Critical
Use
62
Permit
(
CUP)
system
described
by
EPA
in
the
proposed
rule.
EPA
did
not
propose
the
CUP
system
as
the
preferred
alternative
but
did
take
comment
on
this
option.
EPA
believes
that
this
comment
does
not
apply
to
the
CUA
system
because
the
CUA
system
allows
for
producers
and
importers
to
produce
or
import
methyl
bromide
at
the
beginning
of
the
control
period
in
order
to
create
the
supply
of
exempted
material.
The
CUA
system
is
not
a
real
time
system
where
methyl
bromide
could
only
be
produced
once
an
order
was
for
the
material
was
placed.
Such
a
system
would
have
practical
limitation
for
a
product
that
takes
weeks
or
even
months
to
reach
market.
Assuming
that
the
commenter
is
in
fact
referring
to
the
CUP
system
when
he
states
that
trading
allows
use
of
methyl
bromide
to
expand
because
when
someone
reduces
or
eliminates
the
need
for
a
CUP,
the
methyl
bromide
amount
should
be
gone,
EPA
responds
as
follows.
The
fact
that
a
user
could
sell
his
or
her
permit
and
receive
a
revenue
from
it,
may
be
the
reason
why
he
no
longer
needs
methyl
bromide.
The
revenue
from
the
CUP
would
act
as
a
subsidy
to
make
a
marginal
alternative
economically
feasible.
Thus,
there
is
an
environmental
benefit
derived
by
allowing
a
user
to
trade
a
CUP.
On
the
commenter's
last
point,
EPA
currently
processes
trades
within
3
business
days.
If
EPA
had
to
manually
process
hundreds
or
thousands
of
trades
as
could
happen
under
a
CUP
system,
the
commenter
is
correct
that
three
days
would
be
difficult
from
an
administrative
perspective.
However,
EPA
does
not
anticipate
a
problem
with
processing
trades
under
a
CUA
system.

 
One
commenter
suggested
that
EPA
would
need
to
allocate
allowances
in
a
supplier
location
appropriate
way
[
0137].

Response
#
63:
This
commenter
is
suggesting
that
EPA
issue
sector
or
applicant
specific
allowances
to
suppliers
who
service
those
particular
markets.
For
example,
the
commenter
believes
it
would
make
little
sense
for
EPA
to
issue
any
Florida
strawberry
allowances
to
a
distributor
in
California.
Although
EPA
believes
this
suggestion
has
merit,
trading
provisions
would
allow
the
market
to
correct
itself.
In
addition,
EPA
does
not
have
baseline
data
on
the
markets
serviced
by
each
entity
in
the
supply
chain
to
implement
such
an
option.
This
issue
is
also
considerably
minimized
because
EPA
is
creating
only
two
allowance
groupings
as
opposed
to
adopting
a
sector
specific
approach.

 
One
commenter
noted
that
they
favored
intrasector
trading
of
MBr
[
0211].

Response
#
64:
This
commenter
supports
sector
specific
allocation
of
allowances
and
supports
trading
among
members
of
a
sector.
Because
this
framework
does
not
make
sense
under
the
allowance
system
where
EPA
issues
allowances
to
producers
and
importers
of
methyl
bromide,
EPA
is
concluding
that
this
commenter
is
referring
to
the
Critical
User
Permit
model.
EPA
is
not
implementing
the
downstream
allowance
system
where
the
Agency
distributes
permits
to
critical
users
because
of
the
time,
burden,
and
data
difficulties
associated
with
this
approach.
However,
if
EPA
were
to
implement
such
a
system
in
the
future,
the
Agency
would
63
like
to
note
that
limiting
trade
of
permits
to
only
those
entities
in
the
same
sector
would
decrease
the
value
of
the
permits,
the
revenue
available
to
the
permit
holder
for
forgoing
use
of
methyl
bromide,
and
thus
the
economic
incentive
to
move
to
ozone
friendly
alternatives
that
would
otherwise
be
economically
infeasible.

7.
b.
Trading
between
allowances
Commenter
Organization
Document
ID
Number
Ann
M.
Oxford
Albemarle
Corporation
0226
Paul
Niday
TriCal,
Inc.
0231
Courtney
M.
Price
et
al.
American
Chemistry
Council's
Methyl
Bromide
Industry
Panel
0245
Tim
Maniscalo
Dow
AgroSciences
0247
 
Three
commenters
agreed
that
entities
should
be
permitted
to
trade
CUAs
and
CSAs.
[
0245,
0247,
0226]
o
One
commenter
noted
that
"[
r]
ather
than
requiring
either
that
the
producer
acquire
stocks
or
the
distributor
acquire
CUAs
before
making
the
exchange,
EPA
should
allow
the
CUA
holder
to
exchange
those
CUAs
for
CSAs
regardless
of
the
level
of
stocks
it
holds"
and
proposed
that
EPA
strike
the
words
"
provided
they
hold 
critical
use
allowance"
from
the
proposed
regulatory
language
set
forth
in
40
CFR
§
82.12(
e)(
1).
[
245]
 
Another
commenter
noted
that
"
the
proposed
rule
should
state
that
the
retirement
of
CUAs
in
exchange
for
CSAs
shall
be
required.
This
stipulation
is
in
accordance
with
the
Directive
of
the
Protocol
and
would
prevent
any
additional
MB
production
from
adding
to
available
stocks
at
the
end
of
control
period"
[
0247]

Response
#
65:
EPA
agrees
that
it
may
be
more
efficient
to
allow
an
entity
to
exchange
their
CUAs
for
CSAs
prior
to
obtaining
the
corresponding
quantities
of
inventory.
EPA
believes
that
there
is
an
environmental
benefit
to
forgo
new
production
and
instead
augment
use
of
available
stocks,
where
possible.
Therefore,
EPA
is
amending
its
proposal
to
allow
for
a
more
efficient
transaction
process
in
the
exchange
of
CUAs
for
CSAs.
In
exchanging
a
CUA
for
a
CSA,
the
Agency
will
retire
the
CUA
to
maintain
compliance
with
the
overall
cap.
The
commenter
is
concerned
that
EPA
will
allow
entities
to
create
inventories
with
critical
use
methyl
bromide
and
so
is
suggesting
that
EPA
require
allowance
holders
to
retire
any
CUAs
to
reflect
the
amount
of
inventories
on
hand
of
critical
use
methyl
bromide.
EPA
will
reduce
the
total
amount
of
CUAs
issued
in
a
following
year
based
on
the
total
amount
of
unused
material
held
in
the
system
as
a
whole.
See
section
ten
of
this
document
for
additional
information
on
the
treatment
of
unused
critical
use
methyl
bromide.
64
8.
Summary
of
Comments
Relating
to
ACQUIRING
CRITICAL
USE
METHYL
BROMIDE
Commenter
Organization
Document
ID
Number
James
Nicol
Great
Lakes
Chemical
Corporation
0140
 
JN
(
transcript
of
public
hearing)
Richard
Matoian
California
Fig
Industry
0202
Dennis
Balint
California
Walnut
Commission
0203
Douglas
H.
Fender
Turfgrass
Producers
International
0205
Richard
Peterson
California
Dried
Plum
Board
0206
Ken
Woody
Plum
Creek
Timber
Company
0209
A.
R.
Chase
California
Cut
Flower
Commission
0210
Steve
Hensley
USA
Rice
Federation
(
USA
Rice)
0214
Wade
Purvis
Pacific
Collier
Fresh
0215
David
R.
Riggs
Western
Raspberry
Nursery
Consortium
0217
Edward
M.
Ruckert
Crop
Protection
Coalition
0219
Stephen
E.
Payne
Pet
Food
Institute
(
PFI)
0221
Daniel
A.
Botts
Florida
Fruit
&
Vegetable
Association
0223
Steve
Godbehere
Hendrix
and
Dail,
Inc.
0227
Paul
Niday
TriCal,
Inc.
0231
Rex
Cunningham
Emerald
Island
Turf,
Inc.
0233
Tim
Maniscalo
Dow
AgroSciences,
LLC
0247
David
Corbett
David
Corbett
Farms,
LLC
0249
Randy
DeWitt
DeWitt
Produce
Co.,
Inc.
0250
Donnie
H.
Morris
Georgia
Fruit
and
Vegetable
Growers
Association
0251
Gibbs
Patrick,
Jr.
Gibbs
Patrick
Farms,
Inc.
0252
Melvin
Mathis
MGM
Plant
Company
0253
Wilbert
Morgan
Morgan
Farms
0254
Harry
Vanderveer
Texas
Forest
Service
0255
Mark
Harrell
N/
A
0256
Dan
Stringfield
MeadWestVaco
Corporation
0257
Paul
Phypers,
Jr.
Happiness
Farms,
Inc.
0259
Scott
Enebak
Southern
Forest
Nursery
Management
Cooperative
0199
 
Nine
commenters
believe
that
the
most
appropriate
and
manageable
process
for
acquiring
critical
use
methyl
bromide
is
one
that
is
based
on
a
QPS­
like
process
that
requires
self­
certification
[
0210,
0205,
0140­
JN,
0217,
0221,
0231,
0247,
0260].
 
One
commenter
notes
that,
if
the
system
works
for
QPS,
it
will
be
the
easiest
and
the
least
expensive
to
implement,
and
that
another
system
cannot
be
developed
in
the
short
time
remaining
[
0210].
 
Another
commenter
notes
that
self­
certification
should
include
an
addendum
that
attests
to
the
end­
user's
membership
in
an
authorized
user
group
[
0205].
 
A
third
commenter
believes
that
the
recordkeeping
and
reporting
system
proposed
by
EPA
is
similar
to
the
system
that
has
been
successfully
used
for
65
QPS,
which
relies
on
periodic
reports
by
producers
and
distributors
and
the
retaining
of
specified
records
by
applicators
and
owners.
Self­
certification
of
qualifying
uses,
with
significant
uses
for
noncompliance,
is
used.
This
commenter
supports
self­
certification
because
of
its
proven
success
and
acceptable
administrative
burden
for
stakeholders
and
EPA
[
0140­
JN].
 
A
fourth
commenter
believes
that
it
is
in
the
legal
and
financial
best
interest
of
all
parties
to
only
allow
for
the
use
of
methyl
bromide
as
truly
necessary
[
0221].
 
A
fifth
commenter
notes
that,
with
the
relatively
small
numbers
of
large
growers
that
own
the
majority
of
the
acres,
a
self­
certification
system
would
not
be
overly
burdensome.
This
commenter
cites
the
Florida
Agricultural
Statistics
Service,
which
reported
that
70
percent
of
the
vegetable
acres
in
production
in
Florida
are
managed
by
only
15
growers
[
0247].
 
Another
commenter
also
believes
that
all
growers
whose
sector
and
region
qualified
for
a
CUE
should
be
considered
"
pre­
qualified"
as
approved
critical
users
and
should
be
allowed
to
self­
certify
that
they
have
one
or
more
of
the
limiting
critical
conditions
[
0260].

Response
#
66:
EPA
concurs
that
the
self
certification
provisions
are
the
least
burdensome
way
to
implement
the
exemption
program
and
that
this
approach
has
worked
well
under
the
quarantine
and
preshipment
exemption.
EPA
is
requiring
that
entities
identify
themselves
as
an
approved
critical
user,
which
by
definition
means
that
they
are
part
of
a
consortium
that
applied
for
an
exemption,
and
certify
that
they
will
use
the
methyl
bromide
for
an
approved
critical
use.
EPA
is
requiring
all
approved
critical
users
to
self
certify
and
is
not
"
pre­
qualifying"
whole
regions
or
sectors
in
this
rule
because
in
some
instances,
consortiums
did
not
identify
themselves
in
this
manner.
For
example,
the
Turfgrass
Producers
only
applied
for
an
exemption
on
behalf
of
their
membership,
not
all
sod
producers
in
the
U.
S.
Therefore
EPA,
under
the
framework
finalized
in
today's
rule,
could
not
"
prequalify
all
sod
growers.

 
Fourteen
commenters
believe
that
the
certification
for
CUE
should
be
by
the
grower
or
nursery
manager,
since
that
person
is
the
only
one
capable
of
making
the
decision
that
a
limiting
factor
exists
in
a
particular
field
since
fumigation
is
done
in
advance
of
planting
the
crop
and
future
soil
pest
pressure
can
only
be
determined
on
past
history
[
0209,
0215,
0227,
0233,
0249,
0250,
0251,
0252,
0253,
0254,
0255,
0256,
0257,
0259].

Response
#
67:
EPA
concurs
that
the
grower
should
certify
that
they
have
a
critical
use
and
EPA
is
implementing
a
framework
where
the
end
user
must
certify
that
the
use
is
an
approved
critical
use.

 
One
commenter
objects
to
the
proposed
requirement
that
the
user
certify
to
the
existence
of
limiting
critical
conditions
immediately
prior
to
treatment,
since
the
weeds
and/
or
any
other
plant
life
are
not
present
before
treatment.
This
commenter
recommends
that
this
certification
requirement
be
deleted
on
the
ground
that
it
66
removes
the
availability
of
a
CUE
for
most
users.
Instead,
this
commenter
suggests
that
the
user
certify
that
they
belong
to
an
entity
that
submitted
a
CUE
application
that
was
approved,
and
that
they
will
apply
the
chemical
in
accordance
with
the
application
request.
The
applicator
would
record
the
amount
used,
the
size
of
the
acreage
treated,
and
the
crops
treated,
and
this
information
could
be
used
to
track
the
amount
of
methyl
bromide
used
within
each
sector
[
0219].

Response
#
68:
EPA
agrees
that
weed
pressures
would
not
exist
typically
at
the
time
of
fumigation.
The
fumigation
may
be
a
preventative
measure
to
control
weed
populations
in
areas
where
the
problem
is
persistent.
However,
EPA
is
not
deleting
this
limiting
critical
condition
in
today's
rule.
Instead
EPA
is
modifying
the
condition
to
a
reasonable
expectation
that
weed
pressure
would
develop
without
fumigation
to
address
the
timing
issue
raised
by
the
commenter.
For
more
information
on
the
Agency's
treatment
of
limiting
critical
conditions,
please
see
section
9b
of
this
document.

 
Three
commenters
believe
that
requiring
users
to
be
certified
as
a
condition
of
gaining
access
to
methyl
bromide
is
overly
burdensome,
and
duplicates
what
was
in
the
original
CUE
application,
as
it
requires
users
to
confirm
that
they
meet
the
conditions
of
Appendix
L
to
Part
82.
Additionally,
these
commenters
note
that
this
requirement
may
ask
individual
users
to
certify
to
facts
that
didn't
exist
when
the
application
was
made,
including
the
limiting
critical
conditions.
It
is
suggested
that
any
certification
be
limited
to
the
fact
that
the
user
is
part
of
a
commodity
group
that
has
an
approved
CUE
and
that
the
methyl
bromide
purchased
under
that
CUE
will
be
used
for
that
purpose
[
0202,
0203,
0206].

Response
#
69:
EPA
does
not
believe
the
certification
requirement
is
overly
burdensome.
It
is
a
minimally
burdensome
way
to
create
a
paper
trail
that
in
fact
exempted
material
went
only
to
exempted
uses.
EPA
does
agree
that
some
of
the
limiting
critical
conditions
may
not
be
present
at
the
time
of
fumigation
and
has
accordingly
modified
those
conditions
to
incorporate
a
"
reasonable
expectation"
standard.
For
more
information
on
the
Agency's
treatment
of
limiting
critical
conditions,
please
see
section
9b
of
this
document.

 
One
commenter
expressed
concern
over
requiring
grower
certification
as
to
the
existence
of
the
undefined
levels
of
pest
pressure
[
0223].

Response
#
70:
EPA
does
agree
that
some
of
the
limiting
critical
conditions
may
not
be
present
at
the
time
of
fumigation
and
has
accordingly
modified
those
conditions
to
incorporate
a
"
reasonable
expectation"
standard.
For
more
information
on
the
Agency's
treatment
of
limiting
critical
conditions,
please
see
section
9b
of
this
document.

 
One
commenter
stated
that
certifying
the
existence
of
limiting
critical
conditions
immediately
prior
to
treatment
was
not
a
feasible
system
for
rice
mills
because
they
must
schedule
their
fumigation
in
advance
and
often
over
holiday
weekends.
It
is
67
suggested
that
EPA
delete
this
requirement
because
the
system
would
only
work
for
emergency
fumigations
and
would
limit
the
number
of
scheduled
fumigations
[
0214].

Response
#
71:
The
limiting
critical
conditions
that
apply
to
rice
milling
are
not
conditions
that
vary
significantly
over
time.
Conditions
include
the
presence
of
sensitive
equipment
in
a
facility,
difficulty
meeting
a
market
window
during
the
peak
season,
or
time
needed
to
transition
to
a
newly
available
alternative
such
as
sulfuryl
fluoride.
These
conditions
are
well
known
in
advance
of
the
contracted
fumigation
date.
68
9.
Summary
of
Comments
Relating
to
WHO
IS
AN
APPROVED
CRITICAL
USER
9.
a.
Uses
Commenter
Organization
Document
ID
Number
Gary
L.
Obenauf
Agricultural
Research
Consulting
0139
Steve
Hensley
USA
Rice
Federation
(
USA
Rice)
0214
Stephen
E.
Payne
Pet
Food
Institute
(
PFI)
0221
Daniel
A.
Botts
Florida
Fruit
&
Vegetable
Association
0223
Gene
Harrington
National
Pest
Management
Association,
Inc.
0229
Courtney
M.
Price
et
al.
American
Chemistry
Council's
Methyl
Bromide
Industry
Panel
0245
Tim
Maniscalo
Dow
AgroSciences
0247
James
W.
Wells
Environmental
Solutions
Group,
LLC
0260
 
In
one
set
of
comments,
the
point
is
made
that
the
dried
plum
application
includes
figs
and
raisins.
Therefore,
the
commenter
suggests
that
the
text
on
page
38
of
the
proposed
allocation
regulation
be
revised
to
include
commodity
storage
entities
storing
figs
and
raisins
[
0139].

Response
#
72:
EPA
inadvertently
made
an
omission
in
the
proposal
and
agrees
with
the
commenter
that
figs
and
raisins
should
be
included
in
the
commodity
storage
sector,
as
this
consortium's
CUE
application
available
in
the
docket
and
the
U.
S.
nomination
included
figs
and
raisins.

 
One
commenter
asks
that
EPA
"
please
amend
the
final
rule
to
include
the
fact
that
the
methyl
bromide
(
MeBr)
critical
use
is
intended
for
all
locations
in
the
United
States
belonging
to
rice
millers
who
are
members
of
the
USA
Rice
Millers
Association.
Please
note
that
such
a
change
will
encompass
all
of
the
locations
originally
planned
for
in
the
CUE
and
will
not
change
the
amounts
requested
by
RMA"
[
0214].

Response
#
73:
EPA
thanks
this
commenter
for
correcting
the
Agency's
characterization
of
their
consortium.
In
the
final
rule,
EPA
will
adjust
the
consortium
membership
to
include
all
of
the
rice
millers
who
are
members
of
the
USA
Rice
Millers
Association.

 
One
commenter
requests
that
EPA
change
its
interpretation
of
the
Pet
Food
Institute
application
to
include
only
those
companies
who
are
active
members
of
PFI,
instead
of
all
pet
food
manufacturing
facilities
in
the
U.
S.,
for
the
post­
harvest
critical
use
exemptions.
If
this
request
cannot
be
made,
PFI
asks
that
EPA
only
consider
cats
and
dogs
in
its
definition
of
"
pets".
These
requests
have
been
made
because
PFI
only
represents
97%
of
dog
and
cat
food
companies
in
the
United
States
and
does
not
represent
companies
dealing
with
the
production
and
distribution
of
food
for
69
other
animals
species.
PFI
can
only
provide
data
and
knowledge
about
cat
and
dog
food
companies
[
0221].

Response
#
74:
EPA
incorrectly
characterized
this
commodity
group
as
all
pet
food
facilities
in
the
proposed
rule
and
will
change
the
scope
to
be
more
narrow
and
only
include
cat
and
dog
food
facilities.
The
exemption
to
meet
the
needs
of
dog
and
cat
food
facilities
is
further
limited
to
those
companies
who
are
active
members
of
PFI.
EPA
is
making
these
changes
to
be
consistent
with
the
PFI's
exemption
application
to
EPA
available
in
the
docket
and
the
U.
S.
nomination.

 
One
commenter
is
concerned
that
the
allocation
process
does
not
define
the
conditions
of
use
related
to
the
rates
or
methods
of
application.
Consequently,
growers
may
not
have
the
"
material
available
to
meet
their
bona
fide
use
of
methyl
bromide
for
crop
sites
that
are
included
in
the
amounts
approved
by
the
Parties
to
the
Montreal
Protocol"
[
0223].

Response
#
75:
EPA
is
not
mandating
certain
rates
or
methods
of
applications
under
today's
rule
even
though
the
exempted
amounts
were
calculated
assuming
certain
dosage
rates.
This
is
because
EPA
does
not
want
to
prohibit
someone
from
using
a
higher
application
rate
to
control
a
particularly
difficult
pest.
Although
this
may
lead
to
less
methyl
bromide
available
for
another
user
it
may
be
necessary
to
guarantee
control
of
a
particularly
difficult
pest.

 
One
commenter
urges
EPA
to
incorporate
into
the
final
rule
the
supplemental
requests
to
the
Parties
for
the
use
of
methyl
bromide
in
2005
which
will
have
final
approval
before
the
end
of
2004.
These
uses
could
be
included
in
Appendix
L
to
Subpart
A
of
Part
82
[
0229].

Response
#
76:
In
November
2004,
the
Parties
approved
an
additional
610
metric
tones
(
2.39%
of
baseline)
of
methyl
bromide
for
critical
uses
in
2005.
EPA
did
not
include
this
supplemental
amount
in
the
August
2004
NPRM
because
EPA
did
not
know
what
action
the
Parties
would
take
and
what
conditions,
if
any,
the
Parties
might
impose
on
a
supplemental
authorization.
Accordingly,
this
amount
is
not
included
in
today's
final
rule.
EPA
will
conduct
a
separate
notice
and
comment
rulemaking
for
the
supplemental
amount.
EPA
will
expedite
this
separate
rulemaking
to
prevent
disruption
to
production
process
for
these
sectors.

 
Three
commenters
agree
with
the
"
approved
critical
user"
definition
supplied
in
the
NPRM
and
believe
it
should
be
used
in
the
final
rule
[
0245,
0247,
0260].
 
One
commenter
is
concerned
that
the
language
in
the
Protocol
includes
parties
that
have
not
participated
in
the
Critical
Use
Nomination
Process,
and
thus
allows
those
who
did
not
participate
to
use
methyl
bromide
that
should
be
available
to
those
who
did
participate
[
0247].

Response
#
77:
EPA
generally
concurs
with
this
commenter
regarding
the
"
approved
critical
user"
definition
and
has
made
only
small
changes
to
the
definition
to
70
enhance
clarity
and
to
incorporate
the
"
reasonable
expectation"
standard
for
limiting
critical
conditions.
Those
users
who
have
not
participated
in
the
CUE
process
will
not
have
access
to
critical
use
methyl
bromide.
The
one
exception
would
be
that
new
members
of
a
consortium
that
applied
for
a
critical
use
exemption
will
have
access
to
critical
use
methyl
bromide
if
they
otherwise
qualify
as
approved
critical
users
because
their
consortiums
participated
in
the
process
for
an
exemption
in
2005
on
behalf
of
their
members.

9.
b.
Conditions
Commenter
Organization
Document
ID
Number
Dan
Legard
California
Strawberry
Commission
0140
­
DL
Daren
Gee
N/
A
0140
­
DG
David
R.
Riggs
Western
Raspberry
Nursery
Consortium
0217
David
Doniger
Natural
Resources
Defense
Council
(
NRDC)
0246
Tim
Maniscalo
Dow
AgroSciences
0247
James
W.
Wells
Environmental
Solutions
Group,
LLC
0260
(
late
comment)

David
Doniger
(
letter
to
Linda
Fisher)
NRDC
0287
 
Two
commenters
feel
that
approving
users
for
critical
use
exemptions
based
upon
their
ability
to
prove
that
they
have
limiting
critical
conditions,
such
as
pest
and
pathogen
problems
or
state­
mandated
caps
on
Telone,
is
"
unreasonable,
unachievable,
and
unenforceable"
and
many
qualified
growers
will
not
be
able
to
meet
such
stipulations
[
0140­
DL,
0140­
DG].
 
Furthermore,
one
of
the
commenters
points
out
that
growers
will
have
trouble
determining
when
their
township
has
hit
their
Telone
cap,
and
that
mandating
growers
to
experience
great
pest
and
disease
outbreaks
before
they
can
use
methyl
bromide
will
cause
many
growers
to
go
out
of
business
[
0140­
DG].

Response
#
78:
EPA
recognizes
that
a
user
may
not
be
able
to
certify
that
certain
limiting
critical
conditions
will
definitely
occur.
For
example,
a
grower
may
not
know
with
one
hundred
percent
certainty
that
moderate
to
severe
nutsedge
infestation
would
occur
in
a
given
field
in
the
absence
of
methyl
bromide
fumigation.
However,
the
grower
should
be
able
to
form
a
reasonable
expectation
in
this
regard,
based
on
past
experience
and
the
information
included
in
the
application.
EPA
has
modified
the
definition
of
approved
critical
user
to
reflect
the
"
reasonable
expectation"
standard.
Therefore,
if
a
reasonable
person
expects
that
he
would
have
high
levels
of
nutsedge,
perhaps
because
of
a
problem
in
a
neighboring
field
or
the
field
in
question
had
problems
the
previous
year
that
would
be
a
sufficient
basis
to
meet
the
LCC.
This
renders
it
unnecessary
for
the
grower
to
wait
for
a
nutsedge
problem
to
develop
during
the
growing
season
when
it
is
no
longer
possible
to
remedy
the
problem.
71
 
One
commenter
feels
that
it
is
unfair
to
approve
only
members
of
the
Western
Raspberry
Nursery
Consortium
who
meet
the
limiting
conditions
of
moderate
to
severe
nematode
infestation,
medium
to
heavy
clay
soils,
and
prohibition
of
the
use
of
1,3
dichloropropene
due
to
township
caps
to
use
orchard
seedling
applications
for
raspberry
nurseries.
The
commenter
feels
that
these
limiting
conditions
are
unfair
because
they
were
not
previously
a
part
of
the
Decision
of
the
Montreal
Protocol
or
EPA's
analysis
and
that
no
conditions
not
previously
covered
by
the
Decision
should
be
included
in
the
rule
[
0217].

Response
#
79:
Limiting
critical
conditions
are
those
reasons
why
the
alternatives
are
not
technically
and
economically
feasible
and
therefore
there
is
a
critical
need
for
methyl
bromide.
EPA
is
not
instituting
new
factors
in
the
rule
but
merely
outlining
the
data
in
the
nomination,
responses
to
MBTOC
and
the
five
way
analysis
that
describe
the
critical
need
for
a
particular
use.
For
the
orchard
replant
sector,
the
basis
for
the
critical
need
is:
to
control
the
target
pests
(
pests
include
weeds
and
fungal
pathogens
p.
7,
2003
Nomination,
Orchard
Nursery
chapter),
heavy
soils
leading
to
inadequate
diffusion
of
1,­
3dichloropropene
and
metham
sodium
(
p.
9,
2003
Nomination,
Orchard
Nursery
chapter)
and
township
caps
(
see
the
Five­
Way
Analysis).

 
One
other
commenter
states
that
conditions
in
the
"
rule
go
beyond
the
scope
of
the
EPA
nomination
and
Montreal
Protocol
exemption"
[
0260].

Response
#
80:
In
the
Nomination,
EPA
explained
the
feasibility
of
chemical
in­
kind
alternatives
by
describing
what
pest
complexes
were
effectively
controlled
with
alternatives,
and
which
pest
complexes
required
methyl
bromide
for
treatment.
EPA
nominated
amounts
of
methyl
bromide
based
on
these
and
other
conditions
and
therefore
including
these
conditions
in
this
rule
is
not
beyond
the
scope
of
the
nomination
or
the
Montreal
Protocol
exemption.

 
However,
two
other
commenters
agree
with
the
"
limiting
critical
conditions".
 
One
explains
that
without
the
requirement,
growers
whose
needs
could
be
met
by
alternatives
would
continue
to
use
methyl
bromide
[
0246].
 
Another
believes
the
"
limiting
critical
conditions"
(
LCC)
are
relevant,
but
perhaps
only
to
specific
products.
Therefore,
the
commenter
believes
that
the
"
limiting
critical
conditions"
should
be
reviewed
and
revised
periodically.
The
commenter
also
believes
that
the
"
limiting
critical
conditions"
may
need
to
be
more
clearly
explained
or
refined
in
the
following
areas:
 
The
yellow
and
purple
nutsedge
should
qualify
as
an
LCC
only
when
nutsedge
herbicides
are
not
viable
for
nutsedge
control
on
a
particular
field.
 
With
the
availability
of
1,3­
D
as
a
nematicide,
"
nematode
infestations"
should
not
qualify
as
an
LCC.
72
 
Moderate
to
severe
fungal
pathogen
infestation
should
not
serve
as
an
LCC
itself
because
chloropicrin
can
be
used
to
control
pathogens.
 
Occupied
structures
should
be
considered
LCC
for
portions
of
a
field
impacted
by
an
occupied
structure
within
100
feet,
rather
than
76
meters
of
a
treated
area,
because
U.
S.
EPA
labels
for
1,3­
D
products
require
a
100
feet
buffer
zone.
 
If
a
local
authority
has
imposed
a
buffer
zone
on
methyl
bromide
which
is
comparable
to
a
buffer
zone
for
a
methyl
bromide
alternative,
then
the
buffer
zone
to
the
"
occupied
structure"
should
not
be
considered
an
LCC.
 
The
commenter
agrees
with
the
township
allocation
limits
for
1,3­
D
products.
However
the
limit
should
only
become
an
LCC
if
the
allocation
limit
for
the
year
has
been
met,
which
rarely
happens.
Furthermore,
since
limits
vary
across
years
and
townships,
they
should
not
be
stated
in
Appendix
L.
 
Most
of
southern
Florida
has
a
spodic
or
argillic
layer
that
can
support
seepage
irrigation
and
can
be
treated
with
1,3­
D.
These
areas
should
not
be
confused
with
karst
topography
which
is
a
LCC.
 
Older
structures
that
cannot
be
properly
sealed
should
not
serve
as
an
LCC.
Methyl
bromide
will
leak
from
those
buildings
which
are
not
properly
sealed
to
the
same
extent
as
alternatives
such
as
SF.
 
The
presence
of
electronic
equipment
should
not
be
considered
an
LCC
when
SF
is
available
because
SF
is
also
not
corrosive
to
electronic
equipment.
 
Where
ProFume
®
is
registered
for
use,
rapid
fumigation
for
commodity
storage
is
not
a
justification
for
a
LCC
because
ProFume
®
can
perform
rapid
fumigations
to
the
same
extent
as
MB
[
0247].

Response
#
81:
EPA
concurs
that
the
following
limiting
critical
conditions
should
be
modified
or
eliminated.
EPA
is
making
the
following
changes
in
today's
rule:
a)
eliminating
the
LCC
of
"
moderate
to
severe
nematode
pressure"
in
all
uses
except
certain
nursery
type
crops
because
the
commenter
correctly
states
that
there
are
effective
alternatives
to
control
this
condition
when
it
occurs
alone;
b)
eliminating
"
moderate
to
severe
pathogens"
in
all
uses
except
Michigan
tomatoes
and
certain
nursery
type
crops
because
there
are
effective
alternatives
to
control
this
condition
when
it
occurs
alone
and;
c)
modifying
the
buffer
zone
LCC
to
reflect
recent
label
changes
that
reduce
the
buffer
to
100
feet
from
an
occupied
structure.
The
last
LCC
would
apply,
as
the
commenter
pointed
out,
only
in
situations
where
methyl
bromide
has
a
less
restrictive
buffer
zone.
EPA
is
eliminating
the
first
two
LCCs
on
nematode
and
pathogen
infestation
because
there
are
effective
alternatives
to
control
these
pests
when
they
happen
to
be
the
only
key
pest.
EPA
had
incorrectly
characterized
these
conditions
as
stand
alone
circumstances
that
would
allow
for
the
use
of
methyl
bromide
in
the
proposal
although
the
nomination
describes
these
situations
as
requiring
methyl
bromide
when
in
conjunction
with
another
circumstance.
EPA
did
not
eliminate
the
second
LCC
for
Michigan
tomatoes
because
severe
nematode
or
pathogen
pressures
alone
make
the
alternatives
not
73
feasible.
This
is
because
Michigan
is
a
cold
climate
and
the
alternatives
which
would
otherwise
be
effective
have
not
yet
been
demonstrated
to
properly
diffuse
in
the
cool
soils.
EPA
did
not
eliminate
the
first
two
LCCs
for
certain
nursery
type
crops
because
of
the
zero
tolerance
threshold
for
pests
and
the
lack
of
data
today
that
confirm
such
performance
from
an
alternative.
EPA
agrees
that
the
LCC
for
occupied
structures
should
be
modified
to
reflect
recent
label
changes
from
76
meters
to
100
feet
and
EPA
has
made
those
changes
to
the
critical
use
tables.
With
regards
to
the
township
cap,
EPA
believes
that
if
the
user
expects
that
they
can
not
do
a
complete
fumigation
without
running
into
the
township
cap,
that
they
meet
this
particular
limiting
critical
condition.
Typically,
users
in
California
consult
the
local
pesticide
regulators
to
obtain
permission
to
fumigate
prior
to
fumigation
and
are
informed
if
they
can
not
use
1,3­
d
products
due
to
township
limits.
If
a
user
does
not
have
any
other
limiting
critical
condition
and
is
allowed
to
use
1,3­
d
products,
then
the
use
is
not
a
critical
use.
EPA
does
not
agree
that
1,3­
D
products
combined
with
an
herbicide
can
replace
a
critical
need
for
methyl
bromide
in
areas
with
moderate
to
heavy
nutsedge
pressures
and
is
not
adjusting
this
LCC.
Further,
the
LCC
regarding
karst
topography
is
limited
to
those
circumstances
where
1,3­
d
products
are
not
permitted
to
be
used
by
either
FIFRA
label
restrictions
and/
or
state
and
local
pesticide
regulations
to
prevent
groundwater
contamination.
EPA
does
not
agree
that
Profume
can
replace
methyl
bromide
for
all
registered
uses
for
reasons
elaborated
on
in
section
one
of
this
document.
The
comments
referring
to
the
LCCs
of
older
structures
that
can
not
be
properly
sealed
and
the
presence
of
electronic
equipment
subject
to
corrosion
are
subsets
of
the
issue
raised
by
the
commenter
that
Profume
can
replace
methyl
bromide
for
all
registered
uses
and
are
therefore
dealt
with
in
the
treatment
of
Profume
more
broadly
in
this
rulemaking.
EPA
is
not
eliminating
those
two
LCCs
because
they
limit
a
users
ability
to
use
other
alternatives
such
as
heat
or
phosphine
which
are
other
registered
alternatives
and
as
discussed
in
section
one,
EPA
has
no
basis
to
believe
that
Profume
can
replace
the
entire
market
by
January
2005.

 
One
commenter
believes
that
EPA
has
not
properly
defined
or
applied
legal
standards
to
a
"
significant
market
disruption".
A
market
disruption
must
affect
price
and
availability
of
commodity
rather
than
just
involving
an
additional
cost
to
growers
[
0246,
0287].

Response
#
82:
EPA
carefully
weighed
and
analyzed
many
economic
factors
in
developing
the
Nomination.
These
factors
include
loss
as
a
percentage
of
gross
revenue,
absolute
losses
per
hectare,
losses
per
kilogram
of
methyl
bromide
requested,
loss
as
a
percentage
of
net
cash
revenue,
and
changes
in
profit
margins.
In
the
Nomination,
EPA
interpreted
"
the
threshold
of
significant
market
disruption
to
be
met
if
there
is
a
significant
impact
on
commodity
suppliers
using
methyl
bromide.
The
economic
measures
provide
the
basis
for
making
that
determination."
(
2003
Nomination
for
a
Critical
Use
Exemption
for
Methyl
Bromide
submitted
by
the
United
States
of
America).
EPA
posted
a
memo
titled:
74
"
Development
of
2003
Nomination
for
a
Critical
Use
Exemption
for
Methyl
Bromide
from
the
United
States
of
America
on
the
public
docket
as
part
of
this
rulemaking.
That
memorandum
explains:
"
EPA
defined
`
market'
in
terms
of
agricultural
commodities.
Markets
are
partially
defined
by
the
interaction
between
supply
and
demand,
which
determines
the
price
and
quantity
of
a
good
traded
in
a
market.
EPA's
position
is
that
a
disruption
to
either
side
of
a
commodity
market,
demand
or
supply,
would
result
in
market
disruption.
EPA
believes
that
disruptions
to
domestic
supply
of
agricultural
commodities
would
be
a
disruption
to
the
market;
thus,
driving
out
domestic
production
[
would
constitute
such
a
disruption],
even
if
it
were
replaced
by
imports
so
that
consumers
would
not
experience
a
reduction
in
the
amount
supplied."
Thus,
EPA
considered
the
"
significant
market
disruption"
criterion
in
developing
the
nomination.

9.
c.
New
market
entrants
Commenter
Organization
Document
ID
Number
David
K.
Mueller
Pest
Managers
for
A
Better
Environment
0134
Mitch
Dubensky
American
Forest
&
Paper
Association
0140­
MD
Dan
Legard
California
Strawberry
Commission
0140­
DL
Scott
Enebak
Southern
Forest
Nursery
Management
Cooperative
0199
Douglas
H.
Fender
Turfgrass
Producers
International
0205
George
Lowerts
International
Paper
0211
David
R.
Riggs
Western
Raspberry
Nursery
Consortium
0217
Edward
M.
Ruckert
Crop
Protection
Coalition
0219
Courtney
M.
Price
et
al.
American
Chemistry
Council's
Methyl
Bromide
Industry
Panel
0245
James
W.
Wells
Environmental
Solutions
Group,
LLC
0260
(
late
comment)

 
One
commenter
believes
that
section
J
will
allow
for
companies,
who
do
not
need
methyl
bromide,
to
join
a
consortium
and
gain
access
to
methyl
bromide.
Section
J
could
act
as
a
loophole
allowing
entire
sectors
(
such
as
the
strawberry
sector)
to
easily
purchase
and
use
methyl
bromide
and
this
is
unfair
to
those
companies
who
have
been
working
to
comply
with
the
Montreal
Protocol
[
0134].

Response
#
83:
The
Agency
wishes
to
accommodate
the
ever
shifting
marketplace
to
allow
growers
to
increase
or
move
production
as
needed
provided
that
critical
use
methyl
bromide
only
goes
to
those
uses
and
locations
listed
in
Appendix
L
of
40
CFR
82.
EPA
is
finalizing
a
framework
in
today's
rule
that
allows
a
new
market
entrant
who
is
a
member
of
a
consortium
that
applied
for
an
exemption
to
be
an
approved
critical
user
so
long
as
the
use
is
for
a
use
listed
in
column
A
and
a
location
listed
in
column
B
of
Appendix
L
to
40
CFR
82.
Therefore,
an
approved
critical
user
includes
those
users
who
are
members
of
a
consortium
that
applied
for
75
an
exemption,
even
if
the
user
was
not
a
member
of
the
consortium
at
the
time
the
application
was
filed.
EPA
has
no
way
of
tracking
the
names
and
locations
of
every
farmer
covered
by
an
application
and
does
not
believe
that
the
regulated
community
wishes
for
the
Agency
to
approve
each
and
every
user
and
location
before
a
fumigation.
The
approach
taken
by
EPA
allows
for
consortia
to
define
themselves,
at
the
time
the
application
is
made
to
EPA,
as
narrowly
or
broadly
as
they
choose
so
as
to
minimize
the
potential
for
free­
riders
later
on.
Many
commodity
groups
chose
to
apply
on
behalf
of
all
users
in
their
state,
not
just
their
members
and
in
doing
so,
the
consortium
itself
broadly
considered
the
needs
of
potential
members.
However,
this
does
not
mean
that
a
consortium
can
increase
the
amount
of
critical
use
methyl
bromide
simply
by
defining
itself
more
broadly.
As
described
in
the
proposal,
EPA
will
not
increase
the
amount
of
methyl
bromide
exempted
to
accommodate
new
market
entrants
without
first
seeking
authorization
from
the
Parties
through
the
nomination
and
then
engaging
in
a
notice
and
comment
rulemaking
process.
Any
increase
in
demand
for
methyl
bromide
due
to
new
market
entrants
must
be
met
under
the
cap
set
forth
in
today's
rule.

 
Three
commenters
agree
that
clarification
and
review
is
needed
regarding
the
entrance
of
new
users
into
the
market
because
their
entrance
may
cause
current
members
of
a
consortium,
who
have
been
involved
in
the
process
all
along,
to
get
less
methyl
bromide
[
0140­
DL,
0199,
0211].
It
is
thought
that
those
who
have
not
applied
for
critical
use
exemptions
"
should
not
benefit
from
the
effort
of
others"
[
0217].
 
One
commenter
suggests
that
"
a
new
member
must
wait
one
allocation
year
to
have
access
to
methyl
bromide
stocks
thus
participating
in
the
development
of
the
CUE
application
with
the
inclusion
of
their
methyl
bromide
needs
unless
an
excess
of
methyl
bromide
exists
in
the
current
year"
[
0211].

Response
#
84:
See
response#
83
above.
Again,
EPA
does
not
have
the
ability
to
monitor
the
market
with
such
close
detail
as
to
discern
which
farmer
or
which
acre
is
new
and
therefore
could
not
implement
a
suggestion
such
as
the
one
provided
by
the
commenter.

 
One
commenter
believes
that
to
allow
those,
who
are
not
members
of
Turfgrass
Producer's
International,
farm
access
to
the
amount
of
methyl
bromide
authorized
because
of
TPI's
CUE
application
will
encourage
free­
riders.
This
must
be
addressed
in
the
final
rule
so
that
at
least
a
TPI
membership
is
required
for
sod
farms
to
be
considered
"
approved
critical
users"
[
0205].

Response
#
85:
EPA
mischaracterized
this
information
in
the
proposed
rule.
In
the
final
rule,
EPA
is
changing
approved
critical
uses
from
all
sod
producers
in
the
U.
S.
to
sod
producers
that
are
members
of
TPI
to
reflect
the
original
exemption
application.
76
 
Two
commenters
believes
that
a
new
entrant
should
be
able
to
qualify
for
existing
critical
use
exemptions
as
long
as
they
qualify
for
a
critical
use
exemption
group
and
agree
to
and
are
able
to
follow
the
provisions
of
the
group[
0219,
0260].

Response
#
86:
As
stated
above,
new
members
of
a
consortium
can
be
considered
approved
critical
users
as
long
as
they
otherwise
qualify.

 
One
commenter
requests
that
the
Agency
revise
the
rule
to
automatically
approve
growers
as
a
critical
users,
without
requiring
proof
of
limiting
critical
conditions,
if
they
are
in
a
sector
or
region
that
qualifies
for
a
critical
use
exemption
[
0140DG].

Response
#
87:
EPA
is
requiring
all
approved
critical
users
to
self
certify
and
is
not
"
pre­
qualifying"
whole
regions
or
sectors
in
this
rule
because
in
some
instances,
consortiums
did
not
identify
themselves
in
this
manner.
For
example,
the
Turfgrass
Producers
only
applied
for
an
exemption
on
behalf
of
their
membership,
not
all
sod
producers
in
the
U.
S.
Therefore
EPA,
under
the
framework
finalized
in
today's
rule,
could
not
"
pre­
qualify"
all
sod
growers.
EPA
does
agree
that
some
of
the
limiting
critical
conditions
may
not
be
present
at
the
time
of
fumigation
and
has
accordingly
modified
those
conditions
to
incorporate
a
"
reasonable
expectation"
standard.
For
more
information
on
the
Agency's
treatment
of
limiting
critical
conditions,
please
see
section
9b
of
this
document.

 
One
commenter
believes
that
EPA's
definition
of
"
consortium"
is
appropriate
and
that
new
organizations
should
allow
new
members
in
accordance
with
their
own
rules.
Furthermore,
EPA
and
distributors
should
not
be
the
parties
deciding
who
is
allowed
in
a
particular
consortium
[
0245].

Response
#
88:
This
comment
supports
the
approach
EPA
is
finalizing
in
today's
rule.
EPA
concurs
that
the
definition
posited
by
the
Agency
for
a
"
consortium"
is
appropriate.
77
10.
Summary
of
Comments
Relating
to
REPORTING
AND
RECORDKEEPING
REQUIREMENTS
10.
a.
Reporting
Commenter
Organization
Document
ID
No
Tim
Maniscalo
Dow
AgroSciences
LLC
0247
Courtney
M.
Price
et
al.
American
Chemistry
Council
 
Methyl
Bromide
Industry
Panel
0245
 
One
commenter
believes
that
the
final
rule
should
include
an
effective
tracking
and
reporting
systems
that
allows
EPA
to
determine
methyl
bromide
usage
during
the
control
period.
This
commenter
also
believes
that
EPA
should
require
all
methyl
bromide
allocation
users
who
consume
more
than
10,000
kg/
year
to
report
actual
use
during
the
control
period
in
order
to
ensure
that
all
methyl
bromide
volumes
acquired
under
the
allocation
program
were
consumed
for
the
use
for
which
it
was
allocated.
This
manufacturer
also
suggests
that
EPA
adopt
a
real­
time
tracking
system
similar
to
that
used
to
document
pesticides
in
California
to
manage
township
caps
[
0247].

Response
#
89:
EPA
is
primarily
concerned
with
understanding
how
much
methyl
bromide
is
used
for
each
critical
use
sector
on
an
annual
basis.
Therefore,
a
real
time
tracking
system
is
not
warranted.
The
reporting
requirements
described
in
today's
action
are
sufficient
to
meet
the
information
requirements
under
the
Protocol
and
the
CAAA
and
to
ensure
that
EPA
can
implement
the
exemption
from
one
control
period
to
the
next.
However,
there
is
nothing
in
this
rule
to
prohibit
the
private
development
of
such
a
system
and
EPA
understands
that
one
such
database
company
has
had
conversations
with
methyl
bromide
registrants
about
developing
a
database
similar
to
the
one
described
by
the
commenter.

 
One
commenter
generally
supports
the
proposed
reporting
requirements,
while
repeating
its
assertion
that
EPA
lacks
the
legal
authority
to
regulate
use
of
stocks.[
0245].
 
The
commenter
believes
that
requiring
producers
and
importers
to
submit
quarterly
reports
on
expended
and
unexpended
CUAs
and
CSAs
is
consistent
with
existing
reporting
obligations
and
is
reasonable
for
ensuring
compliance
with
the
allowance
system.
The
commenter
notes
that
producers
and
importers
of
methyl
bromide
have
extensive
experience
with
the
current
reporting
requirements
and
already
have
mechanisms
and
system
in
place
to
facilitate
reporting.
 
The
commenter
believes
that
the
reporting
requirements
are
made
significantly
more
complex
by
requiring
distributors
to
file
annual
reports
on
the
amount
of
critical
use
methyl
bromide
bought,
sold,
and
held
in
inventory
on
a
sector­
specific
basis
(
regardless
of
the
allocation
approach
used).
It
is
suggested
that
EPA
establish
alphanumeric
codes
to
differentiate
and
identify
each
sector
to
ensure
consistency
in
reporting
and
minimize
the
burden.
78
 
The
commenter
states
that
the
NPRM
does
not
explain
how
the
reporting
requirements
would
be
revised
under
a
sector­
specific
approach,
and
suggests
that
if
that
approach
is
implemented,
the
type
and
frequency
of
reporting
for
producers
and
importers
should
remain
consistent
with
existing
requirements,
but
that
they
should
be
able
to
use
any
alphanumeric
code
system.
 
The
commenter
notes
that
the
preamble
text
indicates
that
distributors
will
be
required
to
submit
quarterly
reports
on
their
level
of
expended
and
unexpended
critical
stock
allowances,
but
that
the
regulatory
language
of
the
NPRM
does
not
include
a
provision
for
this
requirement.
The
commenter
suggests
that
the
final
rule
be
revised
to
correct
this
error.
 
The
commenter
also
believes
that
the
compliance
burden
associated
with
data
compilation
and
reporting
under
the
proposed
rule
would
increase
significantly
if
EPA
decided
to
impose
a
sector­
specific
allocation
reporting
system.
The
commenter
considers
that
under
the
current
system,
data
compilation
and
reporting
times
are
at
least
two
times
greater
than
those
estimated
under
EPA's
Paperwork
Reduction
Analysis,
and
that
under
a
sector­
specific
approach,
the
time
burden
would
be
four
times
higher
than
EPA
has
estimated.
 
Lastly,
the
commenter
notes
that
the
NPRM
does
not
include
a
reporting
requirement
for
collecting
data
on
the
total
amount
of
methyl
bromide
held
in
existing
and
available
stocks,
and
EPA
does
not
otherwise
explain
how
it
will
obtain
this
data.
The
commenter
believes
that
the
reporting
requirements
should
be
revised
to
correct
this
oversight
if
EPA
decides
to
employ
its
formula
for
available
stocks
(
although
the
commenter
objects
to
the
formula).
Also,
the
NPRM
requires
reporting
only
of
"
critical
use
methyl
bromide"
inventory
at
the
end
of
the
control
period,
and
the
commenter
finds
no
description
of
how
this
information
will
be
sufficient
to
determine
the
allocation
of
CSAs.

Response
#
90:
The
legal
authority
for
information
collection
to
meet
reporting
requirements,
as
outlined
in
the
rule,
is
found
under
Sections
603(
b),
603(
d)
and
614(
b)
of
the
CAAA.
EPA
believes
these
reporting
requirements
are
necessary
in
order
to
meet
U.
S.
reporting
obligations
under
Article
7
of
the
Protocol
and
CAAA
reporting
requirements
to
Congress
under
Section
603(
d).
It
is
necessary
for
distributors
to
file
annual
reports
on
the
amount
bought,
sold
and
held
in
inventory
so
that
EPA
may
obtain
accurate
and
quality
data
on
the
use
of
exempted
critical
use
methyl
bromide.
EPA's
authority
to
regulate
use
of
methyl
bromide
in
connection
with
the
critical
use
exemption
is
discussed
in
section
one
of
this
document.
Under
a
sector­
specific
approach,
the
reporting
requirements
would
be
similar
to
the
requirements
finalized
today
because
EPA
is
collecting
sector
level
"
use"
data
under
either
approach.
Sector
level
data
is
necessary
regardless
of
the
approach
because
EPA
recognizes
that
such
data
will
improve
the
accuracy
of
the
critical
use
determination
and
the
nomination
process.
The
commenter
did
not
specify
which
elements
of
the
data
burden
are
inaccurate
nor
suggest
an
alternative
number
of
burden
hours
for
the
allegedly
inaccurate
burden
elements.
EPA
based
79
these
estimates
on
the
burden
associated
with
existing,
similar
requirements.
Without
a
specific
comment
in
this
regard,
EPA
does
not
believe
an
adjustment
to
the
burden
hours
is
possible.
EPA
believes
that
establishing
alphanumeric
codes
would
reduce
the
burden
of
reporting
sector
level
sales
information
by
creating
a
standardized
format.
However,
there
are
other
methods
to
standardize
the
information
requirements
such
as
using
a
check
list
reporting
form.
EPA
anticipates
that
the
final
reporting
form
will
use
a
check
list
or
similar
standardizing
mechanism.
The
regulatory
text
in
the
final
rule
includes
requirements
for
producers
to
report
to
EPA
on
the
number
of
unexpended
and
expended
critical
stock
allowances.
EPA
is
requiring
that
producers,
importers,
distributors,
and
applicators
report
to
EPA
on
the
amount
of
critical
use
methyl
bromide
sold
and
not
sold
at
the
end
of
the
year.
EPA
will
use
this
data
to
determine
how
much
to
adjust
new
production
in
the
year
after
the
year
in
which
the
data
was
reported.
In
future
rules,
EPA
intends
to
allocate
CSAs
in
a
manner
consistent
with
the
allocation
made
in
today's
rule­
pro­
rata
based
on
percent
of
the
total
inventory
owned
by
an
entity.
EPA
anticipates
that
the
data
reported
in
compliance
with
this
rule
will
enable
the
Agency
to
make
this
type
of
allocation
finalized
in
today's
rule.

10.
b.
Record­
Keeping
Commenter
Organization
Document
ID
No
Gene
Harrington
National
Pest
Management
Association,
Inc.
0229
Courtney
M.
Price
et
al.
American
Chemistry
Council
 
Methyl
Bromide
Industry
Panel
0245
 
One
commenter
believes
that
there
is
no
purpose
for
requiring
a
third
party
applicator
to
acquire
a
certification
from
a
client,
and
that
the
client
may
have
little
or
no
knowledge
of
the
"
critical
use"
process.
It
is
suggested
that
EPA
reconsider
the
recordkeeping
and
reporting
requirements
for
third
party
applicators,
bearing
in
mind
that
the
location
of
the
application
and
the
name
of
the
third
party
applicator
or
commercial
applicator's
client
is
confidential
business
information
[
0229].

Response
#
91:
All
approved
critical
users
have
to
certify
at
the
point
of
purchase
that
they
are
an
approved
critical
user
purchasing
methyl
bromide
for
the
designated
use.
If
a
third
party
happens
to
be
the
point
of
sale
of
fumigation
services
with
critical
use
methyl
bromide
to
an
approved
critical
use,
then
the
user
must
self
certify
to
the
third
party
applicator
and
the
applicator
must
retain
those
records.
EPA
is
sensitive
to
confidential
business
information
and
will
securely
store
records
that
are
designated
as
such.
The
certifications
are
necessary
to
ensure
that
critical
use
methyl
bromide
is
used
only
for
approved
critical
uses.
80
 
One
commenter
believes
that,
in
the
event
that
EPA
employs
a
sector­
specific
approach
(
which
the
commenters
do
not
support),
EPA
should
impose
a
tracking
system
similar
to
that
currently
used
for
the
QPS
exemptions.
Specifically,
entities
in
the
supply
chain
would
keep
records
of
the
amounts
and
categories
of
critical
use
methyl
bromide
bought/
produced
and
sold
during
the
control
period.
Suppliers
would
also
periodically
report
the
transactions.
Entities
that
acquire
methyl
bromide
would
self­
certify
that
it
would
only
be
used
in
the
category
for
which
it
is
purchased.
These
commenters
believe
that
the
difficulties
associated
with
any
other
approach
would
not
be
overcome
through
the
use
of
commercial
database
system,
as
described
in
the
NPRM
[
0245].

Response
#
92:
Although
EPA
has
not
selected
the
sector­
specific
approach,
the
tracking
system
will
be
similar
to
that
currently
used
for
the
QPS
exemptions.
The
producers
will
keep
track
of
how
much
they
produce,
the
distributors
and
applicators
will
also
keep
track
of
what
they
distribute
and
apply.
All
will
self
certify
that
they
are
producing,
distributing
or
using
methyl
bromide
for
the
purpose
of
a
critical
use
exemption.

10.
c.
Treatment
of
Unused
Critical
Use
Methyl
Bromide
Commenter
Organization
Document
ID
No
Tim
Maniscalo
Dow
AgroSciences
LLC
0247
Courtney
M.
Price
et
al.
American
Chemistry
Council
 
Methyl
Bromide
Industry
Panel
0245
 
One
commenter
supports
EPA's
proposed
treatment
and
allocation
of
unused
critical
use
methyl
bromide
[
0247].
 
The
commenter
notes
that
EPA's
rule
should
provide
market
incentives
and
encourage
the
development
and
use
of
methyl
bromide
alternatives,
since
allowing
a
free
flow
of
unused
methyl
bromide
beyond
the
control
period
may
create
uncertainty
among
producers
of
alternative
products.
 
This
same
commenter
also
supports
the
prohibition
on
banking
of
allowances,
and
notes
that
the
banking
concept
should
apply
to
end
users
who
have
purchased
methyl
bromide
previously,
but
have
not
used
all
of
their
purchased
quantity
in
a
given
year.
This
unused
amount
should
be
accounted
for
and
applied
against
CUE
needs
the
following
year.

Response
#
93:
EPA
believes
that
the
market
incentive
for
the
development
of
alternatives
to
methyl
bromide
exists
due
to
the
fact
that
current
regulations
phase
out
production
and
import
of
methyl
bromide
effective
January
1,
2005
and
that
the
approved
exemptions
are
only
temporary
derogations
from
the
phaseout
for
critical
situations.
EPA
will
not
allow
for
the
banking
of
allowances
from
one
year
to
the
next
as
described
in
the
proposed
rule
and
will
account
for
unused
quantities
of
critical
use
methyl
bromide
to
prevent
accumulation
of
a
stockpile
with
exempted
material.
81
 
One
commenter
objects
to
EPA's
proposed
treatment
of
unused
critical
use
methyl
bromide
[
0245].
 
The
commenters
believe
that
EPA
does
not
provide
sufficient
detail
on
its
proposed
approach
to
allow
meaningful
comment.
It
is
unclear
to
the
commenters
whether
EPA
intends
to
deduct
any
leftover
critical
use
methyl
bromide
from
the
CUAs
or
CSAs
for
the
entity
holding
the
stock
or
whether
that
amount
would
be
deducted
from
the
aggregate
amount
of
new
CUAs
and
CSAs
before
any
allocation
of
the
total
to
individual
allowance
holders.
 
The
commenters
feel
that
EPA's
proposed
approach
represents
a
significant
departure
from
the
way
in
which
methyl
bromide
produced
with
production
and
consumption
allowances
is
currently
managed.
 
Once
methyl
bromide
is
produced
with
CUAs,
the
commenters
believe
that
no
time
restrictions
should
exist
on
its
use
for
qualifying
applications,
and
that
the
quantity
remaining
at
the
end
of
the
control
period
should
not
be
deducted
from
the
next
year's
CUAs
or
CSAs.
These
commenters
believe
that
such
a
practice
would
constitute
a
retroactive
change
in
allowed
levels
of
production
and
contradict
a
historical
lack
of
restrictions
on
the
disposition
of
methyl
bromide
produced
by
expending
production
and
consumption
allowances,
a
practice
which
is
consistent
with
the
intent
of
the
Montreal
Protocol.
Because
much
of
the
flexibility
built
into
CUEs
was
eliminated
due
to
reductions
by
EPA
and
other
international
bodies
under
the
critical
use
exemption
process,
the
commenters
object
to
EPA
further
reducing
the
critical
use
exemptions
by
retroactively
changing
what
has
already
been
approved
by
the
Parties.
 
Regardless
of
the
approach
that
EPA
adopts
for
the
allocation
of
CUAs
and
CSAs,
these
commenters
believe
that
producers/
importers
should
be
able
to
carry
allowances
forward
as
a
small
"
buffer"
against
inadvertent
shipment
of
methyl
bromide
to
customers,
in
excess
of
that
produced
with
current
CUAs.
If
this
provision
is
not
included,
these
commenters
expect
that
producers
and
importers
are
likely
to
undersell
critical
use
methyl
bromide
to
avoid
the
possibility
of
exceeding
their
CUAs
and
CUEs,
thereby
denying
end
users
the
full
approved
amount
of
critical
use
methyl
bromide.

Response
#
94:
At
the
end
of
each
calendar
year,
EPA
intends
to
deduct
any
leftover
critical
use
methyl
bromide
that
has
not
been
sold
from
the
aggregate
amount
of
CUAs
available
for
the
year
following
the
year
in
which
the
data
was
reported.
Adjusting
the
supply
in
this
way
reflects
the
availability
of
critical
use
methyl
bromide
material
already
on
the
market.
Unused
methyl
bromide
is
treated
differently
following
the
phaseout
because
the
critical
use
exemption
is
a
need­
based
exemption.
EPA
will
use
the
information
collected
through
the
annual
reporting
requirement
to
determine
how
much
unused
critical
use
methyl
bromide
is
available,
or
not
already
sold
to
an
approved
critical
user,
at
the
end
of
the
calendar
year.
EPA
believes
it
provided
ample
opportunity
for
comment
in
the
proposal.
EPA
specifically
indicated
that
it
would
deduct
the
amount
of
unused
material
at
the
end
of
the
year
from
the
total
number
of
CUAs
made
available
the
following
year.
[
69
FR
52386
to
52387]
A
plain
text
reading
of
that
statement
is
simply
that
82
fewer
allowances
will
be
made
available
and
so
the
pro­
rata
allocation
of
allowances
will
be
based
on
a
lower
total
number
of
allowances.
The
banking
of
allowances
(
both
CUAs
and
CSAs)
from
one
year
to
the
next
is
prohibited
because
the
critical
use
exemption
approved
by
the
Parties
to
the
Montreal
Protocol
in
Decision
Ex
I/
3
is
an
exemption
from
the
controls
that
apply
during
the
2005
control
period.
The
U.
S.
has
obligations
under
the
Montreal
Protocol
and
the
Clean
Air
Act
to
control
the
production
and
consumption
of
ozonedepleting
"
controlled
substances"
on
an
annual,
calendar
year
basis.
While
Decision
Ex
I/
3
authorizes
an
exemption
for
one
control
period
only,
it
is
possible
that
a
future
decision
of
the
Parties
would
authorize
exemptions
for
multiple
years.
EPA
will
revisit
the
issue
of
banking
allowances
under
a
multi­
year
scenario.
EPA
does
not
agree
that
deducting
unused
quantities
of
critical
use
methyl
bromide
from
exempted
amounts
in
future
years
would
constitute
a
retroactive
change
in
allowed
levels
of
production.
Today's
final
rule
does
not
assign
new
legal
consequences
to
methyl
bromide
production
that
occurred
prior
to
January
1,
2005.
If
production
was
legal
at
the
time
it
occurred
(
e.
g.,
the
producer
had
sufficient
unexpended
allowances),
that
past
act
of
production
remains
a
legal
act.
83
11.
Summary
of
Comments
Relating
to
ENFORCEMENT
PROVISIONS
Commenter
Organization
Document
ID
No
David
K.
Mueller
Pest
Managers
for
a
Better
Environment
0134
Richard
Matoian
California
Fig
Industry
0202
Dennis
Balint
California
Walnut
Commission
0203
Richard
Peterson
California
Dried
Plum
Board
0206
A.
R.
Chase
California
Cut
Flower
Commission
0210
Steve
Hensley
USA
Rice
Federation
0214
David
Riggs
Western
Raspberry
Nursery
Consortium
0217
Edward
M.
Ruckert
Crop
Protection
Coalition
0219
James
A.
Bair
North
American
Millers'
Association
0220
Courtney
M.
Price
et
al.
American
Chemistry
Council
 
Methyl
Bromide
Industry
Panel
0245
 
Ten
comments
were
received
on
enforcement
provisions
[
0134,
0202,
0203,
0206,
0210,
0214,
0217,
0219,
0220,
0245].

 
Nine
commenters
believe
that
enforcement
activities
should
be
handled
under
FIFRA
[
0214,
0203,
0202,
0217,
0206,
0220,
0210,
0245,
0219].
 
Two
commenters
assert
that
FIFRA
is
the
traditional
statute
relied
upon
by
EPA
to
penalize
the
misuse
of
a
pesticide.
These
commenters
believe
the
EPA's
example
of
a
10­
acre
farm
owing
$
97
million
in
penalties
for
a
3,000
kg
application
error
shows
the
inequality
inherent
in
attempting
to
enforce
a
treaty
violation
under
the
CAA
enforcement
regulations.
The
commenter
representing
the
Nursery
Consortium
noted
that
the
modified
fine
structure
that
results
in
$
487,000
for
the
same
violation
is
still
disproportionate
to
the
violation.
This
commenter
believes
that
any
error
or
violation
by
an
individual
grower
will
not
add
at
all
to
the
environmental
impact
and
thus
should
not
face
the
same
stiff
penalties
that
a
manufacturer
or
importer
would
[
0124,
0217].
 
Three
commenters
believe
that
while
the
proposed
process
of
lumping
together
pounds
of
product
applied
can
reduce
the
liability,
it
is
still
very
inequitable
when
compared
to
the
penalties
under
FIFRA
[
0203,
0202,
0206].
 
One
commenter
supports
the
enforcement
provisions
for
producers,
importers,
and
distributors,
but
urges
EPA
to
modify
the
enforcement
provisions
for
end
users.
This
commenter
believes
that
defining
each
violation
by
an
end
user
on
a
per
kilogram
basis
could
result
in
unreasonably
high
penalties,
especially
when
compared
to
maximum
penalties
imposed
under
FIFRA.
This
commenter
recommends
that
EPA
either
revise
the
rule
so
that
FIFRA
penalties
can
be
applied
or
so
that
a
violation
for
unauthorized
use
is
defined
as
one
instance
or
event
of
misuse,
rather
than
on
a
per
kilogram
basis
[
0245].
 
One
commenter
believes
that
the
penalties
being
enforced
for
use
of
existing
stocks
are
not
authorized
under
the
CAA.
This
commenter
suggests
that
EPA
84
instead
address
misuse
of
methyl
bromide
under
the
provisions
of
FIFRA,
or
develop
a
penalty
guide
that
approximates
the
penalties
called
for
under
that
law.
This
commenter
recommends,
however,
that
if
EPA
continues
to
rely
on
the
provisions
of
the
CAA,
it
should
further
reduce
the
potential
penalties
it
might
seek
against
a
CUE
holder,
as
proposed
provisions
can
represent
substantially
more
than
the
amount
of
revenue
derived
from
the
acres
upon
which
methyl
bromide
was
erroneously
applied.
This
commenter
believes
that
this
provision
not
only
deters
wrongdoers,
but
also
law­
abiding
citizens
who
cannot
afford
the
risk
of
such
a
large
penalty.
The
commenter
suggests
that
the
maximum
penalty
should
be
$
25,000
per
incident,
an
amount
that
would
encourage
CUE
holders
to
follow
all
conditions
of
the
CUE,
while
not
unduly
frightening
potential
CUE
holders
from
engaging
in
the
process
[
0219].
 
One
commenter
believes
that,
until
the
CUE
system
is
better
understood
and
refined,
the
misuse
provisions
under
the
CAA
will
not
be
appropriate
[
0220].

Response
#
95:
Under
the
Stratospheric
Ozone
Program
regulations,
EPA
has
historically
defined
each
kilogram
of
unauthorized
production
or
importation
of
controlled
substances
to
be
a
separate
violation
of
its
regulations.
Likewise,
for
the
restricted
distribution
under
exemption
programs
of
controlled
substances,
the
Stratospheric
Ozone
Program
has
also
considered
each
kilogram
of
inappropriate
sale
for
a
use
other
than
the
designated
specific
exempted
purpose
to
be
a
separate
violation.
To
ensure
U.
S.
compliance
under
the
Montreal
Protocol,
EPA
believes
this
approach
remains
justified
for
enforcement
against
producers,
importers,
and
distributors
of
methyl
bromide
because
these
are
larger
companies
that
have
an
ability
to
pay
higher
penalties
and
should
face
a
substantial
deterrent
against
producing,
importing,
and
selling
quantities
of
controlled
substances
in
excess
of
allowances.
Thus,
EPA
will
continue
to
define
violations
involving
the
unauthorized
production,
import,
or
sale
of
critical
use
methyl
bromide
on
a
per
kilogram
basis.
However,
EPA
recognizes
that
defining
violations
on
a
per
kilogram
basis
for
end
users
of
methyl
bromide
could
result
in
total
per
incident
penalties
that
would
not
be
commensurate
with
the
misuse
or
the
users'
ability
to
pay
and
would
not
be
necessary
to
provide
an
effective
deterrent.
Therefore,
EPA
is
defining
violations
differently
for
methyl
bromide
end
users
to
reduce
the
maximum
potential
penalty
per
incidence
of
misuse.
EPA
is
defining
each
violation
associated
with
the
improper
use
of
critical
use
methyl
bromide
in
increments
of
200
kilograms.
The
maximum
per
violation
penalty
is
currently
$
32,500
per
kilogram.
EPA
emphasizes
that
this
penalty
is
the
maximum
amount
that
would
be
assessed
per
200
kilograms
of
misuse.
EPA
has
broad
discretion
in
assessing
and
assigning
penalties;
actual
penalties
could
be
lower
than
the
specified
maximum
penalties.
Section
113(
e)
of
the
CAA
provides
that
criteria
to
be
considered
in
assessing
a
penalty
include
the
size
of
the
business,
the
economic
impact
of
the
penalty
on
the
business,
the
violator's
full
compliance
history
and
good
faith
efforts
to
comply,
the
duration
of
the
violation,
payment
of
penalties
previously
assessed,
the
economic
benefit
of
noncompliance,
and
the
seriousness
of
the
violation.
85
FIFRA
and
the
CAA
are
independent
of
one
another.
FIFRA
penalties
will
still
apply
for
the
misuse
of
methyl
bromide
under
FIFRA
and
its
implementing
regulations.
However,
in
assessing
penalties
for
violations
of
the
CAA
and
this
regulation,
EPA
must
apply
the
CAA's
penalty
provisions.

 
Anticipating
illegal
smuggling
of
methyl
bromide,
one
commenter
believes
that
the
proposed
rule
should
include
a
plan
to
minimize
smuggling
by
funding
a
full­
scale
inspection
and
enforcement
organization
with
windfall
profits
from
the
sale
of
CUEs.
Moreover,
this
commenter
suggests
that
border
patrols
should
be
trained
to
detect
methyl
bromide
[
0134].

Response
#
95:
Unlike
other
ODS,
the
shipment,
sale,
and
use
of
methyl
bromide
is
tightly
controlled
under
other
statutes
such
as
FIFRA
making
such
activities
not
only
dangerous
but
difficult
to
undertake.
Therefore,
EPA
does
not
anticipate
that
a
significant
black
market
will
develop
in
the
United
States
for
illegally
produced
or
imported
methyl
bromide.
In
addition,
border
patrols
cannot
be
trained
to
detect
methyl
bromide
since
it
is
an
odorless,
colorless
gas
and
further,
EPA
has
no
authority
to
dedicate
windfall
profits
from
the
sale
of
CUEs
to
an
enforcement
organization
or
inspection
system.

 
One
commenter
questions
how
EPA
planned
to
enforce
the
following
provision
on
page
24,
paragraph
4:
"
An
entity
that
does
not
submit
information
to
EPA
regarding
stocks
of
methyl
bromide
they
hold
for
sale
or
transfer
to
another
entity
as
of
August
25,
2004
will
not
receive
critical
stock
allowances "
Additionally,
this
commenter
questioned
whether
state
or
federal
agencies
will
enforce
the
following
provision
on
page
31,
paragraph
3:
" 
full
penalty
of
law
for
provided
false
information
or
for
use
that
is
not
in
accordance
with
the
critical
use
exemption
regulations."
[
0134]

Response
#
96:
The
language
quoted
by
the
commenter
with
respect
to
receipt
of
critical
stock
allowances
refers
to
an
action
taken
in
this
rulemaking.
EPA
is
not
allocating
CSAs
to
entities
that
did
not
submit
information
regarding
stocks
held
for
sale
or
transfer.
This
is
not
an
enforcement
issue.
To
the
extent
that
the
commenter
is
saying
that
some
entities
that
hold
stocks
for
sale
or
transfer
might
not
report
this
information,
EPA
believes
that
entities
have
a
vested
interest
to
report
their
data
to
EPA
because
in
doing
so
they
may
receive
an
allocation
of
CSAs
which
would
enable
them
to
sell
methyl
bromide
into
the
critical
use
market.
Without
these
allowances,
an
entity
would
be
prevented
from
selling
pre
1/
1/
2005
inventories
into
this
market.
In
addition,
the
penalties
for
not
reporting
are
sufficiently
large
that
even
if
an
entity
believes
the
chances
of
getting
caught
are
low,
the
calculated
risk
of
deliberate
noncompliance
is
still
very
high.
Knowing
submission
of
false
information
is
a
serious
matter
and
is
specifically
addressed
in
section
113
of
the
CAA
and
other
federal
statutes.
Potential
violations
are
often
brought
to
EPA's
attention
when
one
entity
reports
that
they
believe
their
competitor
is
not
abiding
by
the
regulation.
86
12.
Summary
of
Comments
Relating
to
DISTRIBUTION
OF
PERMITS
TO
APPROVED
CRITICAL
USERS
12.
a.
Allocation
of
Allowances
to
Producers/
Importers
versus
End
Users
Commenter
Organization
Document
ID
No
Patrick
Cushing,
Tara
Janosh,
Steve
Mushciano,
Shawn
Ralston,
and
Susan
Wilson
Interagency
Environmental
Cooperation
at
Roger
Williams
University
School
of
Law
0126
Courtney
M.
Price
et
al.
American
Chemistry
Council
 
Methyl
Bromide
Industry
Panel
0245
Steve
Hensley
USA
Rice
Federation
0214
David
Doniger
Natural
Resources
Defense
Council
0133,
0246,
0140
Tim
Maniscalo
Dow
AgroSciences
0247
James
Nicol
Great
Lakes
Chemical
Corporation
0212
 
Eight
sets
of
comments
were
received
on
allocation
of
allowances
to
producers/
importers
versus
end
users
[
0126,
0245,
0214,
0133,
0246,
0140,
0247].

 
Four
sets
of
comments
support
the
allocation
of
allowances
to
producers/
importers
[
0245,
0247,
0214].
 
Three
commenters
believe
that
the
producer/
importer
approach
is
simplest
and
most
transparent
due
to
the
few
entities
involved
and
the
fact
that
these
groups
are
providing
or
will
provide
accurate
data
on
production
and
stock
volumes
on
which
to
base
a
distribution
of
CUAs.
One
of
these
commenters
notes
that
only
four
entities,
all
Methyl
Bromide
Industry
Panel
members,
hold
methyl
bromide
allowances
in
the
U.
S.,
and
all
have
extensive
experience
with
allowance
management
[
0212,
0245,
0247].
 
Two
commenters
asserts
that
because
the
producer/
importer
approach
is
consistent
with
the
current
system
of
allowances
for
the
production
and
import
of
methyl
bromide,
with
which
existing
producers/
importers
and
EPA
are
already
familiar,
a
smooth
transition
to
the
management
of
production
and
import
activities
for
critical
use
needs
will
be
facilitated
[
0212,
0245].
 
Two
commenters
believes
that
a
user­
based
system
would
pose
significant
administrative
and
compliance
monitoring
challenges
for
EPA,
as
it
would
involve
hundreds
to
thousands
of
entities
and
individuals
who
do
not
have
the
same
level
of
capability,
resources,
or
experience.
Individual
farmers
and
growers
would
have
to
provide
more
information
for
EPA
to
distribute
CUPs
directly
to
users,
and
EPA
would
have
to
engage
in
a
notice­
and­
comment
rulemaking
to
distribute
the
CUPs
to
each
entity
after
the
data
is
collected
[
0212,
0245].
 
One
commenter
believes
that
the
CUP
process
will
be
costly
and
a
large
administrative
burden
on
the
end
users.
This
commenter
also
believes
that
the
process
may
result
in
user
level
stockpiles
and
unlawful
sale
or
exchange
of
87
CUPs
or
stockpiles.
The
national
advocate
for
the
rice
industry
also
notes
that
the
CUP
process
would
add
increased
costs
to
the
distribution
network,
making
the
product
even
more
expensive.
As
a
result,
this
commenter
believes
that
EPA
should
move
forward
with
a
simple
plan
for
allocating
methyl
bromide
to
end
users
in
2005
[
0214].
 
Two
commenters
believe
that
a
CUP
system
would
not
be
in
place
for
the
2005
season.
One
of
these
commenters
asserts
that
such
a
system
would
be
unworkable
for
year
2005­
2007
and
would
probably
always
suffer
from
a
commercially
unacceptable
time
lag
[
0214,
0245].
 
Two
sets
of
comments
notes
that
a
producer/
importer­
based
allowance
system
is
the
best
way
to
ensure
a
consistent,
adequate
supply
of
methyl
bromide
for
critical
uses,
since
producers
and
suppliers
need
to
know
how
much
to
produce
or
import
well
in
advance
of
actual
use
to
efficiently
plan
their
operations.
A
user­
based
system,
these
commenters
believe,
would
not
allow
the
level
of
certainty
needed
for
planning
since
end­
users
would
have
to
turn
in
their
allowance
or
place
an
order
for
methyl
bromide
with
a
supplier
[
0212,
0245].
 
A
manufacturer
of
alternatives
to
methyl
bromide
finds
the
use
of
CUAs
and
CSAs
to
be
a
practical,
straightforward
method
to
ensure
that
the
total
methyl
bromide
critical
use
volume
is
not
exceeded
and
that
the
minimum
amount
is
produced
[
0247].
 
Although
EPA
indicated
that
the
CUP
system
would
not
be
possible
to
implement
until
the
2007
control
period
as
a
result
of
the
large
number
of
users,
one
commenter
encourages
EPA
to
begin
the
necessary
steps
to
create
such
a
system.
This
commenter
believes
that
through
the
phaseout
it
will
be
essential
to
ensure
methyl
bromide
access
to
approved
critical
users,
and
that
the
CUP
system
is
a
means
to
track
and
direct
that
amount
of
methyl
bromide
still
available
under
the
CUE
program
to
users
that
have
no
viable
alternatives
[
0247].
 
A
national
advocate
for
the
rice
industry
thinks
that
it
is
not
EPA's
responsibility
to
control
market
forces
through
the
utilization
of
allocations,
and
should
instead
manage
the
overall
reduction
of
the
use
of
methyl
bromide
in
the
U.
S.
This
commenter
asserts
that
EPA
should
restrict
its
control
of
methyl
bromide
at
the
production/
importation
level
and
allow
CUE
applicants
to
acquire
and
utilize
the
allowed
amounts.
Existing
stocks,
this
commenter
believes,
should
be
used
to
fill
gaps
in
the
usage
[
0214].

Response
#
97:
EPA
concurs
with
many
of
the
comments
above.
In
today's
rule,
the
Agency
is
implementing
an
"
upstream"
allowance
system
where
the
Agency
distributes
allowances
to
producers,
importers,
distributors,
and
third
party
applicators
to
make
supplies
of
methyl
bromide
available
to
critical
users.
The
Agency
is
doing
so
for
several
of
the
reasons
indicated
above:
EPA
believes
that
there
will
be
a
smoother
transition
because
the
upstream,
approach
functions
in
a
similar
manner
to
the
current
phaseout
program;
the
Agency
has
high
quality
baseline
data
for
the
upstream
entities
whereas
it
has
almost
no
data
on
individual
entity
use
of
methyl
bromide
for
any
calendar
year;
the
upstream
system
is
less
88
burdensome
and;
the
downstream
CUP
system
could
not
be
implemented
in
time
for
2005.
One
commenter
correctly
notes
that
should
EPA
implement
a
"
redeemable"
CUP
system
where
users
would
sell
their
allowances
to
methyl
bromide
producers
and
importers
at
which
point
a
producer
or
importer
would
then
be
able
to
produce
or
import
critical
use
methyl
bromide,
suppliers
would
be
disadvantaged
because
they
would
not
be
able
to
make
production
decisions
in
advance.
This
particular
product
is
not
a
just
in
time
production
system
so
this
would
cause
a
significant
change
or
disruption
to
the
market.
In
the
proposed
rule,
EPA
cited
this
reason
as
a
limitation
to
this
approach
and
indicated
that
should
the
Agency
move
forward
with
a
CUP
system,
it
would
likely
have
to
be
in
addition
to
the
CUA
system.
In
such
an
instance
the
CUP
would
entitle
the
holder
to
buy
methyl
bromide,
as
opposed
to
entitling
the
company
to
which
the
holder
sold
the
permit,
to
produce
or
import
methyl
bromide.
In
today's
rule,
EPA
is
implementing
an
upstream
allowance
system.
The
Agency
remains
open
minded
to
the
possibility
of
a
different
framework
in
the
future.
In
the
meantime,
though,
despite
encouragement
from
one
commenter,
the
Agency
has
no
plans
to
begin
tracking
use
of
methyl
bromide
at
the
entity
level.
EPA
will
begin
collecting
sector
level
information
through
annual
reporting
under
today's
rule.
If
it
were
necessary,
EPA
could
use
section
114
of
the
Clean
Air
Act
to
request
that
distributors,
applicators,
and
other
suppliers
who
sell
methyl
bromide
directly
to
approved
critical
users,
provide
the
Agency
with
information
on
their
sales
of
critical
use
methyl
bromide
to
each
approved
critical
user.
Such
information
would
be
available
on
the
self
certification
forms
that
are
required
to
be
retained
for
three
years.
One
commenter
indicated
that
their
industry
supports
the
upstream
system
and
believes
that
unlimited
use
of
existing
stocks
should
be
allowed
to
supplement
any
additional
demand.
The
EPA
is
implementing
an
upstream
system
as
suggested
by
the
commenter
but
is
not
allowing
for
unlimited
use
of
stocks
by
approved
critical
uses.
See
section
two
of
this
document
for
a
response
to
comments
on
the
Agency's
treatment
of
stocks.

 
Two
commenters
support
the
allocation
of
allowances
to
end
users
[
0126,
0133,
0246,
0140­
DD,
0246].
 
A
set
of
students
from
a
school
of
law
believes
that
a
system
of
CUAs
based
on
either
a
sector
level
or
on
lump­
sum
basis
is
in
contradiction
with
"
the
goal
of
the
Montreal
Protocol
to
promote
reduction
in
the
use
of
greenhouse
gases
and
encourage
development
of
alternatives."
Additionally,
these
commenters
believe
that
establishing
a
lump
sum
allocation
based
on
1997­
2001
data
would
be
in
conflict
with
the
definition
of
critical
use
in
Decision
IX/
6.
These
commenters
support
the
CUP
system
on
the
ground
that
it
is
a
more
efficient
system
through
market­
based
regulation,
although
they
state
that
a
regulatory
framework
limiting
total
methyl
bromide
production
and
importation
would
be
the
simplest
and
most
transparent
means
of
complying
with
the
Protocol.
In
further
support
of
the
CUP
system,
the
commenters
note
that
the
89
anticipated
initial
increase
in
administrative
cost
to
the
end­
user
would
act
as
a
further
deterrent
to
use
methyl
bromide
[
0126].
 
A
representative
of
a
legal
advocacy
organization
favors
allocating
allowances
to
end
users
through
their
associations
and
dedicating
the
revenue
derived
from
them
to
alternatives
research
and
demonstrations.
This
commenter
believes
that
the
price
increase
will
be
the
same
whether
the
allowances
are
granted
to
the
producers
or
are
granted
to
the
users,
but
that
the
difference
will
be
who
gets
the
revenue
associated
with
those
allowances.
The
representative
notes
that
if
producers
get
the
allowances
for
free,
then
they
will
add
their
resale
value
to
the
price
of
methyl
bromide
and
pocket
the
windfall.
If,
however,
the
allowances
are
given
to
user
associations,
producers
will
have
to
purchase
the
allowances
from
the
users,
raising
revenue
for
alternatives
research
[
0133,
0246,
0140­
DD].

Response
#
98:
EPA
believes
that
an
upstream
system
is
an
effective
way
to
ensure
compliance
with
obligations
under
the
Montreal
Protocol.
A
producer
or
importer
who
produces
or
imports
more
methyl
bromide
than
they
have
allowances
for
would
face
substantial
penalties.
As
described
in
the
proposal
and
addressed
in
section
12.
a
of
this
document,
even
under
a
CUP
system,
the
Agency
would
still
use
a
CUA
system
to
ensure
compliance
with
the
cap
and
use
the
CUPs
to
control
distribution
of
material
in
the
marketplace.
The
Protocol
does
not
control
greenhouse
gasses
but
rather
ozone
depleting
substances
(
ODS).
If
the
commenter
meant
to
indicate
ODS,
not
greenhouse
gases,
EPA
would
like
to
note
that
the
U.
S.
government
has
made
a
significant
on
going
investment
into
research
and
promotion
of
alternatives
to
methyl
bromide.
One
commenter
supported
the
user
oriented
approach
because
the
administrative
burden
of
such
a
system
would
act
as
a
deterrent
to
the
use
of
methyl
bromide
and
would
lead
to
greater
efficiencies.
As
EPA
described
in
the
proposal,
the
CUP
system
would
impose
additional
costs
and
burden
on
industry
compared
to
the
proposed
option.
Although
these
costs
could
be
a
deterrent
to
the
use
of
methyl
bromide
and
thus
achieve
an
environmental
objective
of
reducing
methyl
bromide
use,
EPA
is
committed
to
a
fair
and
scientifically
based
process.
Certain
critical
uses
were
agreed
to
and
determined
through
an
extensive
domestic
and
international
review
based
on
the
technical
and
economic
feasibility
of
alternatives.
EPA
does
not
believe
it
is
fair
to
deliberately
impose
a
regulatory
framework
with
the
goal
of
establishing
high
administrative
costs
to
force
growers
who
do
not
have
any
alternative
available
to
them
out
of
the
market.
Doing
so
would
obviate
the
purpose
of
an
exemption
altogether.
EPA
agrees
that
a
user
based
system
could
create
additional
market
efficiencies
by
allowing
users
with
differing
marginal
cost
of
operations
to
trade
with
one
another.
However,
EPA
does
not
believe
that
the
additional
benefit
of
creating
a
novel
market
for
a
year­
by­
year
exemption
outweigh
the
costs
associated
with
establishing
such
a
market
which
include
not
only
administrative
costs
but
also
learning
costs
and
transaction
costs.
For
a
more
detailed
description
of
the
economic
consideration
of
the
user
based
system,
please
refer
to
the
Regulatory
90
Impact
Assessment
conducted
for
the
proposed
rulemaking
available
at
EPA's
edocket
number
OAR­
2003­
0230.
EPA
concurs
that
distributing
allowances
to
consortia
would
reduce
the
windfall
profits
received
by
suppliers.
However,
as
EPA
described
in
the
proposal,
many
of
the
consortia
are
not
legal
entities
with
any
sort
of
infrastructure.
In
several
instances,
the
consortium
application
was
filed
by
an
extension
agent
on
behalf
of
regional
growers.
Moreover,
EPA
does
not
believe
it
is
efficient
to
institute
two
different
regulatory
systems
(
a
CUA
system
and
a
CUP
system)
to
control
a
relatively
small
exemption
program
($
20
million
annually).
In
addition,
two
different
regulatory
systems
would
be
difficult
to
effectively
monitor
and
enforce
given
current
EPA
resources.

12.
b.
Historic
Baseline
Approach
 
See
above
section
for
comments
on
data
burden
and
logistical
challenges
associated
with
the
baseline
approach.

12.
c.
Auctions
Commenter
Organization
Document
ID
No
Patrick
Cushing,
Tara
Janosh,
Steve
Mushciano,
Shawn
Ralston,
and
Susan
Wilson
Interagency
Environmental
Cooperation
at
Roger
Williams
University
School
of
Law
0126
Courtney
M.
Price
et
al.
American
Chemistry
Council
 
Methyl
Bromide
Industry
Panel
0245
 
Two
comments
were
received
on
allocating
CUPs
through
auctions
[
0126,
0245].

 
One
set
of
comments
supports
an
auction­
based
distribution
system
for
CUPs
[
0126].
 
One
commenter
believes
that
critical
end
users
have,
on
one
hand,
relatively
no
economically
viable
and
effective
alternatives
because
of
a
lack
of
funding,
and
as
such,
require
the
use
of
methyl
bromide
in
order
to
have
a
sustainable
crop
for
dissemination
into
their
markets.
This
commenter
notes
that,
as
a
result
of
EPA's
implementation
of
the
Food
Quality
Protection
Act,
farmers
are
finding
that
less
of
their
crop
protection
tools
are
available
to
them.
The
commenter
also
believes
that
factors
such
as
extreme
weather,
bacteriological
impact,
infestation,
and
low
prices
have
negatively
impacted
U.
S.
farmers,
and
that
many
are
turning
to
available
subsidies
to
avoid
loss.
 
One
commenter
believes
that
through
the
use
of
an
auction­
based
system,
EPA
can
drive
a
market­
based
approach
to
the
eventual
complete
phaseout
of
methyl
bromide
while
fostering
the
development
of
innovative/
alternative
technologies
to
eventually
replace
the
need
for
methyl
bromide.
The
commenter
further
asserts
that
because
an
auction
would
put
all
of
the
historical
and
future
users
of
methyl
bromide
in
one
room
and
force
them
to
91
bid
on
set
quantities,
the
realization
of
marginal
cost
structure
would
put
more
pressure
on
stakeholders
to
develop
alternatives
due
to
increased
cost
of
acquiring
methyl
bromide
in
this
market
environment.
Moreover,
the
commenter
believes
EPA
would
potentially
miss
the
opportunity
to
give
a
narrow
interpretation
to
the
term
"
critical
use"
if
the
allocation
of
CUPs
is
based
on
baseline
historical
data.
The
commenter
puts
forward
the
opinion
that
if
every
user
that,
in
the
timeframe
used
for
the
basis
of
subsequent
years'
allocations,
used
all
the
credited
amount
of
methyl
bromide,
then
there
will
be
no
net
decrease
in
methyl
bromide
use
prior
to
the
2005
phaseout
deadline.
While
the
commenter
acknowledges
that
this
may
be
more
of
a
perceived
than
real
sink,
they
believe
that
any
possibility
is
worth
including
in
the
equation
until
the
actual
implementation
of
a
system
occurs.
This
commenter
also
asserts
that
"
given
the
inconsistent
manner
in
which
the
phaseout
is
being
enforced
with
regard
to
the
developed
versus
developing
countries
reduction
schedules,
and
the
fact
that
marketable
methyl
bromide
still
available,
it
is
difficult
to
create
a
situation
of
global
urgency
for
developing
innovative/
alternative
technology."
 
With
regard
to
the
use
of
revenue
generated
from
the
auction­
based
market,
this
commenter
believes
that
an
independent
non­
profit
agency
should
be
used
as
a
clearinghouse
for
the
auction
since
that
entity
is
better
situated
to
funnel
the
additional
resources
into
research
and
development
for
innovative/
alternative
technology
development.

Response
#
99:
The
Agency
concurs
that
there
are
distinct
policy
advantages
to
an
auction
based
CUP
system
such
as
transferring
market
power
to
end
users
and
allowing
end
users
to
obtain
a
revenue
from
the
sale
of
their
permits
to
facilitate
their
transition
away
from
methyl
bromide.
EPA
does
not
support
nor
dispute
claims
that
the
auction
would
reduce
the
need
for
other
agricultural
subsidies
as
this
is
not
the
Agency's
area
of
expertise.
Notwithstanding
such
claims,
even
if
true,
the
commenter
fails
to
make
a
case
that
the
merits
of
the
auction
are
substantial
enough
to
outweigh
the
very
high
administrative
and
logistical
difficulties
associated
with
this
option.
Economic
theory
suggests
that
an
auction
would
impact
windfall
profits
because
users
would
pay
a
price
premium
in
the
form
of
their
bid
for
rights
to
methyl
bromide
thus
lowering
the
amount
they
are
willing
to
pay
to
chemical
companies
for
the
material
itself.
It
is
a
theoretically
elegant
policy
solution
but
one
with
significant
logistical
barriers
to
implementation.
EPA
did
not
propose
and
is
not
finalizing
this
option
at
this
time
due
to
the
lack
of
clear
statutory
guidance
on
some
of
the
details
of
this
approach,
the
time
it
would
take
to
develop
this
program,
and
the
relatively
small
size
of
the
market
compared
to
the
burden
associated
with
this
approach.
EPA
does
not
concur
with
the
comment
that
the
"
inconsistent
manner
in
which
the
phaseout
is
being
enforced
with
regard
to
the
developed
versus
developing
countries
reduction
schedules,
and
the
fact
that
marketable
methyl
bromide
still
available,
it
is
difficult
to
create
a
situation
of
global
urgency
for
developing
innovative/
alternative
technology."
The
phaseout
is
being
enforced
consistently
in
92
all
countries
where
this
obligation
has
taken
effect
and
the
obligation
has
taken
effect
in
all
countries
that
produce
methyl
bromide
and
all
major
user
countries
as
well.
The
commenter
is
correct
that
developed
countries
are
required
to
phaseout
methyl
bromide
by
January
1,
2005
and
that
developing
countries
have
until
2015
to
complete
their
obligations.
The
commenter
ignores
information
on
the
relative
use
of
methyl
bromide
between
these
two
groups
of
countries­
the
U.
S.
exemption
request
alone
is
larger
than
the
total
obligation
of
most
developing
countries
for
all
of
their
ODS
phaseouts,
not
just
methyl
bromide.
Developing
countries
typically
use
very
small
amounts
of
this
chemical.
In
addition,
development
of
chemical
alternatives
is
an
expensive
process
and
one
that
is
likely
to
take
place
in
developed
countries.
To
date
several
chemical
alternatives
developed
by
companies
in
the
developed
world
have
been
recently
registered
or
are
in
the
process
of
being
registered.
As
with
the
phaseouts
of
other
ozone
depleting
chemicals,
technologies
created
by
developed
countries
to
meet
their
phaseout
obligations
can
then
be
exported
to
developing
countries
later
on
as
they
meet
their
obligations.

 
One
commenter
believes
that
the
auction­
based
approach
should
not
be
implemented
in
the
final
rule
under
any
allocation
scheme
[
0245].
 
This
commenter
asserts
that
the
auction
approach
would
significantly
increase
the
complexity
of
the
allowance
system
and
take
months,
if
not
years,
to
put
in
place,
as
it
would
require
the
development
and
implementation
of
a
new
regulatory
management
system.
The
commenter
mentions
that
EPA
acknowledged
in
2003
stakeholder
meetings
that
an
auction
system
could
not
be
put
in
place
before
the
January
1,
2005
phaseout.
Also,
the
commenter
notes
that
the
auction
approach
was
strongly
opposed
by
users
in
public
meetings
held
prior
to
the
development
of
the
NRPM.
Because
users
would
be
competing
with
each
other
to
obtain
a
portion
of
the
limited
amount
of
methyl
bromide,
and
because
price
would
be
the
only
factor
governing
allocation,
this
commenter
believes
that
it
is
very
likely
that
only
those
with
the
highest
value
uses
would
be
able
to
obtain
allowances.
Moreover,
under
the
auction
approach,
the
commenter
asserts,
one
or
more
growers
could
purchase
all
of
the
allowances
and
control
the
entire
supply
of
the
material.
 
The
commenter
also
believes
that
growers
would
experience
an
increase
in
costs
as
they
would
have
to
pay
a
fee
at
the
auction
for
the
allowance,
and
pay
again
to
purchase
methyl
bromide.
Although
EPA
has
explained
that
it
would
redistribute
these
"
windfall
profits"
received
by
producers
and
importers
to
end
users,
the
commenter
believes
the
concept
of
windfall
profits
is
inapplicable.
Instead,
the
commenter
believes
that
normal
profits
are
being
denied
to
manufactures
and
importers
by
limiting
the
future
sale
and
use
of
their
products.
 
Moreover,
this
commenter
disagrees
with
EPA's
rationale
that
the
proposed
option
would
redistribute
windfall
profits
to
end
users,
and
note
that
the
NPRM
states
that
revenues
from
the
auction
would
be
held
by
the
third
party
non­
profit
to
"
fund
transitions
to
alternatives."
The
commenter
finds
no
basis
to
believe
that
auction
revenues
would
actually
be
transferred
to
end
users
to
decrease
any
of
the
economic
burdens
imposed
on
them.
The
commenter
93
also
finds
no
precedent
or
legal
authority
for
EPA
to
set
up
such
a
system
with
a
third
party,
and
believe
that
all
that
would
be
created
would
be
an
uncontrollable
institution
that
could
justify
committing
funds
to
research
or
other
activities
of
no
immediate
benefit
to
growers.

Response
#
100:
EPA
agrees
that
it
would
take
months,
if
not
years,
to
put
a
new,
complicated
regulatory
procedure
such
as
an
auction
in
place.
Further,
since
this
exemption
is
a
temporary
derogation
from
the
phaseout,
it
seems
to
EPA
that
the
resources
required
to
implement
such
a
system
would
be
better
spent
in
the
creation
of
a
more
long
term
program
to
meet
other
CAA
or
environmental
obligations.
Further,
auctions
are
typically
employed
as
an
environmental
policy
tool
in
instances
where
there
is
no
market.
The
auction
of
allowances
simulates
an
actual
market
for
a
good.
For
example,
before
the
Acid
Rain
Program,
there
was
no
market
for
emissions
of
sulfur
dioxide
and
the
auction
served,
in
part,
to
establish
a
market
as
well
as
to
distribute
a
certain
amount
of
allowances.
However,
in
this
instance,
the
sale
of
methyl
bromide
is
an
established
market.
Although
it
is
theoretically
possible
that
one
user
could
corner
the
market
under
an
auction,
EPA
does
not
believe
that
it
is
more
likely
under
an
auction
than
it
would
be
today
under
the
phaseout.
If
an
entity
were
willing
to
pay
enough
today,
it
could
price
its
competitors
out
of
the
methyl
bromide
market
now.
EPA
continues
to
believe
that
an
auction
would
successfully
redistribute
windfall
profits
but
is
not
putting
an
auction
in
place
for
the
reasons
stated
above.
While
EPA
does
have
sufficient
authority
to
design
an
auction
within
certain
parameters,
it
is
not
necessary
to
provide
a
detailed
explanation
of
such
authority
here
because
EPA
is
not
adopting
an
auction
approach
in
today's
final
rule.

12.
d.
Redeemable
System
 
Comments
referring
to
the
redeemable
system
are
addressed
in
section
12.
a
13.
Summary
of
Comments
Relating
to
EPA
TREATMENT
OF
BASELINE
AND
INVENTORY
DATA
 
No
comments
were
received
on
Treatment
of
Baseline
and
Inventory
Data.

14.
Summary
of
Comments
Relating
to
ECONOMICS
AND
THE
REGULATORY
IMPACT
STATEMENT
 
No
comments
were
received
on
Economics
and
the
Regulatory
Impact
Assessment.
94
15.
Summary
of
Comments
Relating
to
BURDEN
ASSOCIATED
WITH
THIS
REGULATORY
SYSTEM
Commenter
Organization
Document
ID
No
Richard
Matoian
California
Fig
Industry
0202
Dennis
Balint
California
Walnut
Commission
0203
Douglas
H.
Fender
Turfgrass
Producers
International
0205
Richard
Peterson
California
Dried
Plum
Board
0206
James
A.
Bair
North
American
Millers'
Association
0220
Daniel
Boots
Florida
Fruit
&
Vegetable
Association
0223
Don
Bates
Bates
Sons
&
Daughters
0232
Calvin
Everette
Lewis,
Jr.
Hy
Yield
Bromine,
Inc.
0242
Courtney
M.
Price
et
al.
American
Chemistry
Council
 
Methyl
Bromide
Industry
Panel
0245
Melvin
Mathis
MGM
Plant
Company
0253
Wilbert
Morgan
Morgan
Farms
0254
 
Eleven
comments
were
received
on
the
burden
associated
with
this
regulatory
system
[
0202,
0203,
0205,
0206,0220,
0232,
0242
0254,
0253,
0254].

 
One
commenter
believes
that
EPA's
Paperwork
Reduction
Act
underestimates
the
time
burdens
for
compliance
with
certain
aspects
of
the
NPRM.
In
particular,
this
commenter
notes
that
EPA
has
not
included
quarterly
reporting
by
distributors
in
the
compliance
burden
table
in
the
NPRM.
Additionally,
the
commenter
believes
that
EPA's
Regulatory
Flexibility
Act
review
does
not
consider
the
impacts
that
stock
restrictions
will
impose
on
distributors
[
0245].

Response
#
101:
One
commenter
indicated
that
EPA
grossly
underestimated
the
time
required
for
data
compilation
and
reporting
and
suggested
that
it
is
at
least
two
times
greater
than
what
EPA
estimated
in
the
Paperwork
Reduction
Analysis.
This
commenter
did
not
provide
additional
comment
to
explain
specifically
how
or
why
the
EPA
estimate
was
incorrect
not
did
they
indicate
which
particular
activities
should
be
adjusted.
In
regards
to
the
consideration
of
stocks
under
the
Regulatory
Flexibility
Act,
EPA
believes
that
there
will
not
be
a
significant
adverse
economic
impact
on
any
small
entities
as
a
result
of
today's
action.
The
commenter
did
not
specify
why
there
would
be
a
significant
adverse
economic
impact
so
EPA
is
forced
to
conclude
that
the
commenter
must
believe
regulation
of
the
stocks
would
devalue
the
material
and
thus
cause
economic
harm
to
distributors,
some
of
which
may
be
small
entities
although
again,
the
commenter
did
not
specify.
As
described
elsewhere
in
this
document,
EPA
notes
that
there
are
several
markets
for
methyl
bromide
stocks
(
export
to
developing
countries
and
export
to
meet
the
critical
use
demands
of
developed
countries)
which
are
all
sizable
and
important
markets.
Therefore,
EPA
does
not
understand
why
the
value
of
stocks
would
be
greatly
diminished
given
the
number
of
legal
markets
and
does
not
believe
there
would
be
a
significant
adverse
impact
to
small
entities.
95
Even
if
there
were
a
reduction
in
value
of
stocks
on
the
unrestricted
market
because
of
a
glut
of
material
that
had
been
previously
held
for
CUE
users
now
becoming
available,
economic
theory
would
suggest
that
the
corresponding
scarcity
of
stocks
in
the
critical
use
market
would
lead
to
the
ability
to
charge
a
price
premium
in
the
exemption
market,
thus
resulting
in
no
significant
adverse
economic
impact.
This
would
hold
true
unless
the
amount
of
stocks
authorized
for
sale
into
the
critical
use
market
were
equivalent
to
present
demand,
in
which
case
there
would
not
be
a
scarcity
and
ensuing
premium.
In
this
scenario
there
would
clearly
not
be
a
significant
adverse
economic
impact
since
the
regulatory
limit
on
sale
of
stocks
for
critical
uses
would
reflect
the
amount
that
would
have
been
sold
into
that
market
in
the
absence
of
regulation.
Thus,
EPA
does
not
believe
there
would
be
a
significant
adverse
economic
impact
to
small
entities
under
today's
rule.

 
One
commenter
believes
that
the
proposed
rule
is
too
complex
and
can
easily
be
simplified
by
focusing
control
on
methyl
bromide
manufacturers
and
importers.
By
doing
so,
this
commenter
suggests
that
EPA
can
streamline
the
process
to
issue
the
necessary
final
rule
by
January
1,
2005.
[
0220]

Response
#
102:
EPA
is
focusing
on
manufacturers
and
importers
in
today's
rule
in
part
to
simplify
the
regulatory
requirements.

 
Three
commenters
note
that
the
proposed
rule
is
one
of
the
most
confusing
and
complex
rules
that
he
has
ever
reviewed
from
a
federal
agency
[
0202,
0203,
0206].

Response
#
103:
EPA
attempted
to
create
a
clear
proposed
rule.
In
addition,
the
Agency
gave
several
presentations
to
the
stakeholder
community
on
the
proposal,
and
responded
to
many
phone
calls
and
emails
with
questions
on
the
proposal.
EPA
hopes
that
the
commenter
finds
the
final
rule
to
be
clearer.

 
One
commenter
noted
that
his
organization
has
spent
many
hours
and
dollars
to
compile
the
information
necessary
to
file
their
CUE
application,
to
participate
in
numerous
USEPA
and
user
group
meetings,
and
to
provide
additional
details
when
requested.
This
commenter
characterizes
the
process
as
"
arduous
and
extremely
involved."
The
commenter
urges
EPA
to
establish
and
make
public
its
final
rule
in
the
most
expeditious
manner
[
0205].

Response
#
104:
EPA
is
making
the
final
rule
public
as
expeditiously
as
possible
also
mindful
of
the
need
to
carefully
consider
the
full
range
of
comments
on
the
proposed
rule.

 
One
commenter
believes
that
it
would
not
require
much
time
or
overburden
the
producers
and
distributors
to
have
CUAs
since
EPA
recently
required
these
entities
to
produce
inventory
records.
This
commenter
feels
that
it
would
not
be
a
burden
for
producers
and
their
distributors
to
produce
sales
records
for
the
final
user
[
0242].
96
Response
#
105:
EPA
concurs
that
it
requires
minimal
additional
burden
to
implement
the
CUA
system.
However
if
EPA
were
to
require
producers
and
importers
to
produce
sales
records
for
each
sale
to
an
approved
critical
user,
it
would
likely
double
the
estimated
burden
hours
associated
with
today's
rule.

 
Three
commenters
commented
that,
as
small
family
farms,
they
do
not
have
the
resources
or
time
to
file
for
critical
use
exemptions,
and
that
since
production
of
their
crop
was
so
limited,
there
is
not
a
group
that
could
file
for
them.
A
third
commenter
representing
a
small
family
farm
noted
that
they
have
spent
considerable
money
to
participate
in
a
CUE
application,
and
encouraged
EPA
to
develop
a
final
rule
that
is
easy
to
understand,
fair
to
growers
and
the
horticultural
industry,
and
takes
into
account
unsuccessful
efforts
to
find
alternatives
[
0254,
0253,
0232].

Response
#
106:
EPA
recognizes
that
it
takes
time
and
money
to
apply
for
an
exemption.

 
One
commenter
notes
that
it
prepared
petitions
for
critical
use
exemptions
in
several
sectors,
and
that
the
initial
petitions
submitted
in
2002
included
over
8,000
pages
of
information
and
required
over
3,000
hours
to
produce.
Subsequent
petitions
for
2003
and
2004
resulted
in
additional
research
and
documentation
and
included
over
3,000
pages
in
2003
and
1,800
in
2004.
This
commenter
expressed
continued
concerns
over
EPA's
perceived
push
to
make
the
regulatory
framework
for
methyl
bromide
to
match
the
ones
currently
in
place
for
manufacturing
industries
dealing
with
substances
regulated
under
the
CAA.
The
commenter
notes
that
the
complex
distribution
and
delivery
systems
for
methyl
bromide
were
not
designed
with
the
complexities
of
having
to
deal
with
three
different
categories
of
methyl
bromide
in
mind,
as
envisioned
in
the
rule
[
0223].

Response
#
107:
EPA
recognizes
that
the
application
for
an
exemption
requires
time
and
money
to
complete
as
does
the
continuing
demonstration
of
research
for
alternatives.
EPA
has
attempted
to
relieve
burden
by
requiring
less
information
for
subsequent
applications
than
for
the
initial
application.
EPA
does
in
fact
recognize
that
methyl
bromide
is
different
from
other
ozone
depleting
chemicals
that
are
used
in
manufacturing
settings
and
has
addressed
this
point
elsewhere
in
this
document.
Although
there
may
be
some
additional
complexity
using
three
categories
of
methyl
bromide
as
envisioned
under
the
proposed
rule,
EPA
believes
that
with
today's
rule
it
is
implementing
the
least
burdensome,
most
streamlined
regulation
possible
to
ensure
compliance
with
our
Protocol
obligations.
97
16.
Summary
of
Comments
Relating
to
NEED
FOR
AN
EXPORT
MECHANISM
Commenter
Organization
Document
ID
No
Courtney
M.
Price
et
al.
American
Chemistry
Council
 
Methyl
Bromide
Industry
Panel
0245
Ann
M.
Oxford
Albemarle
Corporation
0226
 
Two
commenters
believe
that
it
is
important
to
have
a
mechanism
for
permitting
production
of
critical
use
methyl
bromide
for
export
after
January
1,
2005.
Such
a
mechanism
will
ensure
that
an
adequate
supply
of
methyl
bromide
can
be
produced
to
meet
critical
use
needs
in
other
countries,
since
the
U.
S.
is
the
world's
largest
supplier
of
methyl
bromide.
These
commenters
note
that,
based
on
the
current
provisions
of
the
proposed
rule,
producers
would
have
to
expend
CUAs
that
should
be
expended
to
meet
critical
use
needs
in
the
U.
S.
in
order
to
meet
critical
uses
outside
the
U.
S
[
0245,
0226].

Response
#
108:
EPA
agrees
that
the
regulation
should
include
a
mechanism
for
export
to
developed
countries
to
meet
their
CUE.
In
the
NPRM,
EPA
pointed
out
that
the
U.
S.
is
the
world's
largest
supplier
of
methyl
bromide.
EPA
noted,
for
example,
that
"
a
catastrophe
in
the
U.
S.
would
not
only
affect
U.
S.
users
but
would
affect
those
users
who
have
authorized
critical
uses
in
developed
countries
as
well
as
the
users
in
developing
countries
who
have
not
yet
phased
out
methyl
bromide."
69
FR
52374.
Thus,
EPA
raised
the
issue
of
ensuring
an
adequate
supply
of
methyl
bromide
to
meet
critical
uses
in
other
developed
countries.
In
today's
action,
the
regulatory
text
includes
provisions
that
permit
methyl
bromide
production
explicitly
and
solely
to
meet
the
needs
of
other
countries
that
have
been
authorized
critical
use
exemptions
for
the
specific
control
period.
The
producers
will
be
required
to
report
quarterly
on
quantities
produced
solely
for
export
to
meet
orders
placed
by
other
countries
with
authorized
critical
needs.
98
17.
Summary
of
Comments
Relating
to
the
RULEMAKING
AND
REGULATORY
PROCESS
Commenter
Organization
Document
ID
No
David
Doniger
Natural
Resources
Defense
Council
0133,
0140­
DD,
0246
Edward
M.
Ruckert
Crop
Protection
Coalition
0219
 
Two
comments
were
received
on
the
rulemaking
and
regulatory
process
[
0133,
0140­
DD,
0246,
0219].

 
One
commenter
believes
that
the
proposed
rule
does
not
fully
implement
the
requirements
of
the
CAA
and
the
Montreal
Protocol
in
that
the
rule
would
allow
substantially
higher
levels
of
methyl
bromide
use,
production,
and
consumption
in
2005
than
the
Act
and
the
Protocol
permit.
This
commenter
notes
that,
under
Section
614(
b)
of
the
Act,
the
Act
incorporates
the
Protocol
as
minimum
requirements,
and
that,
under
Section
604(
d)(
6),
EPA
makes
critical
use
exemptions
"
to
the
extent
consistent
with
the
Montreal
Protocol."
This
commenter
also
notes
that
the
proposed
rule
correctly
observes
that
EPA
must
comply
with
the
terms
of
both
Article
2h
of
the
Montreal
Protocol
and
the
related
Decisions
of
the
Parties
pursuant
to
that
article,
including
Decision
IX/
6
and
Decision
Ex.
I/
3.
This
commenter
also
asserts
that
Section
604(
d)(
6)
creates
a
domestic
procedural
requirement
beyond
the
procedures
of
the
Protocol,
which
EPA
has
consistently
acknowledged.
This
commenter
believes
that
the
rulemaking
requirement
has
two
critical
implications.
First,
none
of
the
government's
prior
factual
assertions
about
critical
use
needs
has
any
status
yet
under
the
CAA,
because
there
has
not
yet
been
a
rulemaking
opportunity
to
comment
on
the
basis
for
those
factual
assertions
and
to
receive
a
reasoned
response
to
such
comments.
The
commenter
asserts
that
this
specifically
means
that
EPA
cannot
rely
on
any
factual
assertions
made
in
its
prior
critical
use
nominations
to
the
Protocol
Parties.
All
factual
assertions
relevant
to
critical
use
exemptions
must
be
presented
now,
with
their
supporting
data,
and
made
available
for
comment.

Second,
according
to
the
commenter,
EPA
must
make
its
exemption
decisions
based
on
up­
to­
date
information.
The
rulemaking
for
2005
exemptions
takes
place
now,
and
as
such,
EPA
cannot
rely
on
factual
assertions
made
two
or
three
years
ago
without
taking
into
account
relevant
data
that
has
been
made
available
since.
The
need
for
current
information
is
also
emphasized
in
paragraph
5
of
Decision
Ex.
I/
3,
which
requires
each
country
to
apply
the
Decision
IX/
6
criteria
at
the
time
it
conducts
its
domestic
regulatory
process.
Thus,
this
commenter
concludes
that
the
quantities
included
in
Annex
II
of
Decision
Ex.
I/
3
are
upper
limits
on
the
amount
of
methyl
bromide
that
EPA
may
authorize
as
critical
uses
in
2005,
and
on
the
amount
that
EPA
may
authorize
to
be
produced
or
consumed
in
2005.
To
determine
what
lesser
amounts
are
justified,
EPA
must
apply
the
criteria
of
Decision
IX/
6
to
current
facts.
99
This
commenter
also
asserts
that
the
current
proposed
rule
does
not
comply
with
Section
307(
d)(
3),
on
the
ground
that
EPA's
passive
referencing
of
the
documents
in
the
docket
and
asking
for
comment
does
not
satisfy
this
requirement.
Specifically,
the
commenter
believes
that
the
proposed
rule
provides
no
discussion
of
key
requirements
of
Decision
IX/
6
related
to
the
amount
of
use
to
be
deemed
critical.
Under
Decision
IX/
6
paragraph
(
1)(
a)
and
Decision
Ex.
I/
3
paragraph
5,
this
commenter
asserts
that
EPA
must
determine
in
this
rulemaking
that
lack
of
availability
would
result
in
"
a
significant
market
disruption"
and
that
"
there
are
no
technical
and
economically
feasible
alternatives
or
substitutes
available."
This
commenter
believes
that
EPA
has
not
only
failed
to
address
these
issues,
but
also
cannot
make
these
findings
based
on
up­
to­
date
information.
This
commenter's
organization
was
supplied
FOIA
data
that
show,
according
to
the
commenter,
that
the
total
use
of
methyl
bromide
in
2003
was
already
substantially
lower
than
the
amount
proposed
as
critical
for
2005.
This
commenter
questions
how
EPA
can
propose
that
8,942
metric
tons
are
critical
in
2005,
when
the
total
used
by
farmers,
millers,
and
other
users
in
2003
was
1,268
tons
lower
than
this
amount.
The
commenter
notes
that
the
proposed
rule
does
not
discuss
the
data
released
in
the
FOIA
response,
and
that
although
EPA
officials
have
referred
to
data
that
allegedly
conflicts
with
the
FOIA
data,
EPA
has
never
explained
that
contention
in
any
detail
and
has
claimed
that
some
the
alternative
data
are
confidential.
This
commenter
believes
that
EPA
owes
the
public
a
statement
of
basis
and
purpose
meeting
the
requirements
of
§
307(
d)(
3),
including
the
factual
basis
and
methodology,
for
the
proposed
critical
use
amount
for
2005,
in
time
for
interested
parties
to
comment
meaningfully.

Response
#
109:
EPA
addressed
the
concerns
relating
to
use
data
obtained
under
FOIA
in
section
two
of
this
document.
Section
307(
d)
of
the
CAA
states
that
a
notice
of
proposed
rulemaking
"
shall
be
accompanied
by
a
statement
of
its
basis
and
purpose,"
which
shall
include
"
the
factual
data
on
which
the
proposed
rule
is
based"
as
well
as
"
the
methodology
used
in
obtaining
the
data
and
in
analyzing
the
data."
In
the
NPRM,
EPA
stated
that
the
U.
S.
nominations
and
responses
to
questions
posed
by
MBTOC
provide
the
technical
basis
for
the
2005
critical
use
level,
as
determined
both
domestically
and
by
the
Parties.
The
NPRM
also
described
the
critical
use
process,
including
the
submission
of
information
by
CUE
applicants
and
the
criteria
used
in
reviewing
the
information.
The
details
of
the
review,
including
the
consideration
of
the
criteria
mentioned
by
the
commenter,
are
reflected
in
the
nomination
and
MBTOC
responses,
which
were
docketed
prior
to
the
publication
of
the
proposed
rule.
Thus,
EPA
provided
a
statement
of
the
basis
for
the
proposed
critical
use
level
in
accordance
with
section
307(
d)
and
interested
parties
had
an
opportunity
to
comment.
EPA
noted
in
the
NPRM
that
the
Agency
"
does
not
have
additional
information
to
indicate
that
it
should
adjust
the
amounts
authorized
by
the
Parties,
but
seeks
comments
on
whether
additional
research
and
data
is
available
with
respect
to
the
deployment
of
alternatives,
the
adoption
of
emission
reduction
technologies,
and
the
other
criteria
listed
in
Decision
IX/
6."
69
FR
52373.
Comments
recommending
adjustments
are
discussed
in
Section
I.
a.
of
this
100
document.
As
explained
in
that
section,
EPA
did
not
receive
information
to
indicate
it
should
adjust
the
amounts
authorized
by
the
Parties.
EPA
considered
information
submitted
by
manufacturers
of
alternatives
in
preparation
of
the
U.
S.
nomination.
Hence
these
entities
have
had
two
points
of
entry
into
the
process­
the
first
to
provide
information
to
the
Agency
on
their
alternatives
when
the
nomination
was
developed
and
the
second
to
provide
comments
to
the
Agency
on
our
assessment
through
the
notice
and
comment
rulemaking.
Similarly,
applicants
for
an
exemption
have
had
two
points
of
entry
as
well.
This
second
point
of
entry
has
been
particularly
helpful
to
the
Agency
to
identify
any
circumstances
that
have
changed
since
the
time
the
nominations
were
developed,
such
as
the
registration
of
an
alternative
or
the
de­
listing
of
a
previously
available
alternative.

 
A
coalition
representing
national,
regional,
and
local
agricultural
organizations
asserts
that
the
CAA's
definition
of
the
Montreal
Protocol
does
not
make
any
reference
to
"
Decisions,"
and
thus
"
Decisions"
are
not
binding
on
the
Parties
to
the
Montreal
Protocol.
This
commenter
believes
that
there
is
generally
no
meaningful
or
objective
review
of
a
"
Decision"
by
the
Parties,
and
that
"
Decisions"
may
be
motivated
by
factors
other
than
science,
like
the
attempt
by
a
number
of
countries
to
make
life
difficult
for
the
United
States.
As
a
result,
this
commenter
finds
that
the
U.
S.
must
only
abide
by
the
text
in
the
actual
Protocol
text,
as
well
as
adjustments
and
amendments,
in
the
critical
use
exemption
process.
[
0219]

Response
#
110:
See
response
in
section
two
of
this
document
regarding
"
decisions"
of
the
Protocol.
