Summary
of
Late
Comments
for
Methyl
Bromide
Critical
Use
Exemption
Rule
TABLE
OF
CONTENTS
1.
Summary
of
Comments
Relating
to
CRITICAL
NEED
...............................................
3
1.
a.
Total
amount
for
critical
uses
can
be
reduced
through
use
of
sulfuryl
fluoride
3
1.
b.
Total
amount
for
critical
uses
can
be
reduced
through
use
of
other
chemicals
3
1.
c.
No
need
for
exemptions
...................................................................................
5
1.
d.
Total
amount
is
insufficient
to
meet
critical
use
demand
.................................
6
1.
e.
Total
amount
should
include
amounts
pending
before
Parties
.........................
8
2.
Summary
of
Comments
Relating
to
AMOUNT
FROM
STOCKS
.................................
8
2.
a.
Legal
basis
to
control
stocks
...........................................................................
8
2.
b.
Factors
in
the
algorithm
.................................................................................
9
2.
c.
Disclosure
of
data
(
CBI)
...............................................................................
10
3.
Summary
of
Comments
Relating
to
ACCESS
TO
STOCKS
.......................................
13
3.
a.
Who
should
get
access
to
stocks
....................................................................
13
3.
b.
Legal
basis
...................................................................................................
15
4.
Summary
of
Comments
Relating
to
CAP
ON
CRITICAL
USE
METHYL
BROMIDE
15
5.
Summary
of
Comments
Relating
to
CRITICAL
USE
ALLOWANCE
ALLOCATIONS
17
5.
a.
Baseline
for
critical
use
allowance
distribution
.............................................
17
5.
b.
Frequency
of
critical
use
allowance
distribution
.........................................
177
6.
Summary
of
Comments
Relating
to
CRITICAL
STOCK
ALLOWANCE
ALLOCATIONS
.........................................................................................................
177
7.
Summary
of
Comments
Relating
to
TRADING
ALLOWANCES
.............................
177
7.
a.
Trading
within
allowance
type
....................................................................
177
7.
b.
Trading
between
allowances
.........................................................................
18
8.
Summary
of
Comments
Relating
to
ACQUIRING
CRITICAL
USE
METHYL
BROMIDE
................................................................................................................
188
9.
Summary
of
Comments
Relating
to
WHO
IS
AN
APPROVED
CRITICAL
USER
......
19
9.
a.
Uses
..............................................................................................................
19
9.
b.
Conditions
....................................................................................................
19
9.
c.
New
market
entrants
.....................................................................................
20
10.
Summary
of
Comments
Relating
to
REPORTING
AND
RECORDKEEPING
REQUIREMENTS
........................................................................................................
21
10.
a.
Reporting
..................................................................................................
21
10.
b.
Record­
Keeping
........................................................................................
21
10.
c.
Treatment
of
Unused
Critical
Use
Methyl
Bromide
.....................................
211
11.
Summary
of
Comments
Relating
to
ENFORCEMENT
PROVISIONS
...................
222
12.
Summary
of
Comments
Relating
to
DISTRIBUTION
OF
PERMITS
TO
APPROVED
CRITICAL
USERS
......................................................................................................
233
12.
a.
Allocation
of
Allowances
to
Producers/
Importers
Versus
End
Users
.......
233
2
12.
b.
Historic
Baseline
Approach
....................................................................
233
12.
c.
Auctions
..................................................................................................
233
12.
d.
Redeemable
System
...................................................................................
24
13.
Summary
of
Comments
Relating
to
EPA
TREATMENT
OF
BASELINE
AND
INVENTORY
DATA
.....................................................................................................
24
14.
Summary
of
Comments
Relating
to
ECONOMICS
AND
THE
REGULATORY
IMPACT
STATEMENT
................................................................................................
24
15.
Summary
of
Comments
Relating
to
BURDEN
ASSOCIATED
WITH
THIS
REGULATORY
SYSTEM
............................................................................................
244
16.
Summary
of
Comments
Relating
to
NEED
FOR
AN
EXPORT
MECHANISM
......
244
17.
Summary
of
Comments
Relating
to
the
RULEMAKING
AND
REGULATORY
PROCESS
................................................................................................................
244
3
1.
Summary
of
Comments
Relating
to
CRITICAL
NEED
1.
a.
Total
amount
for
critical
uses
can
be
reduced
through
use
of
sulfuryl
fluoride
 
No
late
comments
were
received
in
relation
to
"
total
amount
for
critical
uses
can
be
reduced
through
use
of
sulfuryl
fluoride."

1.
b.
Total
amount
for
critical
uses
can
be
reduced
through
use
of
other
chemicals
Commenter
Organization
Document
ID
Number
David
Mueller
Fumigation
Service
&
Supply,
Inc.
0265
Mass
letter/
email
campaign
Sponsored
by
Natural
Resources
Defense
Council
(
NRDC)
0143
(
x
167)

Mass
letter/
email
campaign
Sponsored
by
Natural
Resources
Defense
Council
(
NRDC)
0164
(
x
9)

 
Two
sets
of
late
comments
assert
that
the
proposed
cap
on
critical
use
methyl
bromide
for
the
U.
S.
for
2005
of
8,942
metric
tons
is
too
high
[
0265,
0268].

 
Two
sets
of
late
comments
argue
that
the
proposed
cap
is
too
high
on
the
grounds
that
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
[
0143,
0164]

 
A
late
commenter
believes
that
all
flour
mills
and
food
processing
structures,
specifically,
should
not
qualify
for
methyl
bromide
critical
use
exemptions
[
0265].
 
This
commenter
asserts
that
"
all
flour
mills
and
food
processing
structures
in
the
United
States
have
technical
and
economic
alternatives
to
methyl
bromide".
As
an
example,
it
is
stated
that
"
our
group
of
fumigators
have
fumigated
over
100
flour
mills
and
food
factories
with
alternatives
to
methyl
bromide,"
where
"
about
130
MT
was
replaced
during
these
alternative
fumigations"
and
"
each
facility
started
up
the
next
day
insect
free
and
free
from
ozone
depleting
substances."
Further,
it
is
the
opinion
of
this
commenter
that
to
grant
critical
use
exemptions
for
2005
to
those
belonging
to
this
sector
is
"
unfair
for
those
of
us
that
have
worked
hard
to
come
up
with
viable
technical
and
economical
alternatives
to
methyl
bromide
for
structures
and
durables"
and
"
will
be
a
disincentive
to
others
to
research
and
develop
alternatives
to
this
serious
ozone
depleting
substance."
[
0265]
 
This
commenter
also
notes
that
methyl
bromide
users,
in
general,
"
have
had
over
ten
years
to
prepare
for
this
phase
out."
[
0265]
4
 
Further,
each
letter/
email
criticizes
EPA
for
"
allowing
big
agribusinesses
to
use
more
methyl
bromide
in
2005
than
they
actually
used
in
2003."
[
0143
x
167,
0164
x
9]

Response
#
111:
In
the
U.
S.
nomination,
the
EPA
took
great
pains
to
describe
the
specific
circumstances
that
make
alternatives,
which
may
be
otherwise
technically
and
economically
feasible,
not
feasible
for
a
certain
portion
of
total
domestic
use.
The
U.
S.
addressed
the
alternatives
described
by
the
commenter
for
four
mills
and
food
processing
in
the
U.
S.
nomination.
The
commenter
did
provide
additional
technical
data
to
indicate
that
these
alternatives
could
replace
the
use
of
methyl
bromide
over
the
portions
of
the
use
that
EPA
determined
to
be
critical.
Please
see
response
#
2
in
the
on
time
comment
document
for
a
more
detailed
explanation
of
the
technical
and
economic
determinations
for
certain
uses.
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
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
5
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.

1.
c.
No
need
for
exemptions
Commenter
Organization
Document
ID
Number
Mass
letter/
email
campaign
Sponsored
by
Natural
Resources
Defense
Council
(
NRDC)
0143
(
x
167)

Mass
letter/
email
campaign
Sponsored
by
Natural
Resources
Defense
Council
(
NRDC)
0164
(
x
9)

Caire
Lane
N/
A
0278
Will
Alexander
N/
A
0285
Connie
Metcalf
N/
A
0286
 
One
hundred
and
seventy­
six
comments,
received
as
part
of
two
mass
letter/
email
campaigns,
urge
EPA
to
not
allow
methyl
bromide
critical
use
exemptions
[
0143
x
167,
0164
x
9].
 
Each
letter/
email
notes
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
x
167,
0164
x
9]

Response
#
112:
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
6
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
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
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.
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.

 
Three
other
late
commenters
are
also
against
EPA
granting
critical
use
exemptions,
citing
reasons
similar
to
those
given
in
the
mass
letter/
email
campaigns
[
0278,
0285,
0286].
 
One
of
these
commenters
is
also
of
the
opinion
that
EPA
should
destroy
existing
stocks
[
0278].

Response
#
113:
Neither
the
Clean
Air
Act
nor
the
Montreal
Protocol
require
destruction
of
stocks
of
methyl
bromide
as
a
condition
of
the
critical
use
exemption.

1.
d.
Total
amount
is
insufficient
to
meet
critical
use
demand
Commenter
Organization
Document
ID
Number
Billy
W.
Thomas
Georgia
Vegetable
Co.,
Inc.
0258
Indiana
Forest
Nursery
Grower
N/
A
0262
Joseph
M.
Pantaleo
Florida
Golf
Course
Superintendents
Association
0263
Wanda
Hamilton­
Tyler
Hamilton
Growers
0264
Alexander
J.
Ott
California
Grape
&
Tree
Fruit
League
0271
Anne
Giesecke
&
Bob
Garfield
Food
Industry
Environmental
0283
7
Council
(
FIEC)

 
One
late
commenter
expresses
the
concern
that
the
proposed
reduction
of
53,329
kilograms
for
2005
represents
more
than
10
percent
of
the
total
quantity
of
methyl
bromide
approved
for
the
Mills
and
Processors
sector,
and
that
it
will
not
be
technically
or
economically
feasible
in
2005
for
alternatives,
specifically
sulfuryl
fluoride,
to
replace
10
percent
of
the
methyl
bromide
usage
[
0283].

 
While
not
specifically
stating
that
the
amount
of
methyl
bromide
for
critical
uses
is
insufficient,
five
late
commenters
express
a
concern
that
there
is
a
lack
of
effective,
economically
viable
alternatives
[
0258,
0262,
0263,
0264,
0271].
 
One
of
these
commenters,
representing
the
golf
industry
in
Florida,
states
that
the
"
alternatives
do
not
offer
effective
control
of
many
of
the
pests
that
affect
production
and
planting
of
certified
sod
for
use
on
golf
courses"
and
that
"
this
will
require
us
to
make
substantially
more
topical
applications
of
insecticides,
fungicides,
nematicide
and
herbicides
to
grow
quality
turfgrass,
thus
increasing
the
chemical
load
on
the
environment."
[
0263]
Further,
this
representative
asserts
that
"
since
cost
effective
and
safe
alternatives
have
not
been
developed
as
promised
to
offset
the
loss
of
Methyl
Bromide,
it
is
incumbent
on
the
EPA
and
our
legislators
to
see
that
U.
S.
economic
and
environmental
interests
are
protected
and
not
subject
to
unfair
global
competitive
tactics."
[
0263]
 
Three
sets
of
comments
state
that
"
nothing
has
been
found
to
take
the
place
of
methyl
bromide,"
[
0258,
0262,
0264]
where
two
of
these
commenters
continue
with
the
statement
that,
for
fumigation,
"
the
alternatives
that
have
been
tried
have
been
inconsistent,
have
longer
waiting
periods,
are
more
costly,
or
have
buffer
zone
problems."
[
0258,
0264]
One
of
these
commenters
also
claims
that
"
our
industry
has
spent
millions
on
research,
not
USDA
or
EPA
dollars
but
our
dollars,
over
the
past
decade."
[
0262]
 
Finally,
the
last
of
these
commenters,
a
trade
association
that
represents
growers
of
table
grapes
and
fresh
deciduous
tree
fruit
in
California,
notes
that
while
the
industry
continues
to
develop
possible
alternatives
to
methyl
bromide,
"
at
this
point
in
time,
there
seems
to
be
no
`
silver
bullet'
to
replace
this
material."
[
0271]

Response
#
114:
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
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.
The
circumstances
described
by
the
commenters
regarding
the
lack
of
technically
and
economically
feasible
alternatives
in
certain
uses
is
the
reason
why
EPA
is
establishing
a
critical
use
exemption
for
2005.
8
1.
e.
Total
amount
should
include
amounts
pending
before
Parties
 
No
late
comments
were
received
in
relation
to
"
total
amount
should
include
amounts
pending
before
Parties."

2.
Summary
of
Comments
Relating
to
AMOUNT
FROM
STOCKS
2.
a.
Legal
basis
to
control
stocks
Commenter
Organization
Document
ID
Number
W.
Caffey
Norman
Patton
Boggs
LLP
0267
Alexander
J.
Ott
California
Grape
&
Tree
Fruit
League
0271
 
One
late
commenter
argues
that
EPA
is
legally
required
to
take
into
account
existing
stocks
in
regulating
critical
methyl
bromide
use
[
0267].
 
This
commenter
expresses
the
concern
that
"
the
allocation
regulations
adopted
by
EPA
be
fully
consistent
with
the
requirements
of
the
Clean
Air
Act
and
the
Protocol,
including
decisions
of
the
Parties
to
the
Protocol."
[
0267]
It
is
then
noted
by
the
commenter
that
"
in
particular,
Decision
IX/
6(
b)
provides
that
EPA
may
allow
production
and
consumption
of
methyl
bromide
for
critical
uses
only
if
`[
m]
ethyl
bromide
is
not
available
in
sufficient
quantity
and
quality
from
existing
stocks
of
banked
or
recycled
methyl
bromide
also
bearing
in
the
mind
the
developing
countries'
need
for
methyl
bromide.'"
In
the
opinion
of
the
commenter,
"
this
decision
indicates
that
EPA
may
not
authorize
production
of
methyl
bromide
for
critical
uses
to
the
extent
that
EPA
is
able
to
determine
that
methyl
bromide
is
available
from
existing
stocks."
[
0267]
 
This
commenter
also
urges
EPA
to
reject
that
the
option
of
simply
determining
the
amount
of
methyl
bromide
available
from
existing
stocks
in
2005
as
the
difference
between
the
limit
on
methyl
bromide
authorized
for
critical
uses
(
8,842
metric
tons)
and
that
authorized
for
new
production
and
import
(
7,659
metric
tons)
on
the
basis
that
"
this
alternative
approach
is
facially
inconsistent
with
the
Protocol
and
relevant
decisions
thereunder."
[
0267]

Response
#
115:
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.
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
9
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.

 
One
late
commenter
asserts
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
[
0271].

Response
#
116:
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
the
preamble.

2.
b.
Factors
in
the
algorithm
Commenter
Organization
Document
ID
Number
W.
Caffey
Norman
Patton
Boggs
LLP
0267
 
Specific
comments
on
a
number
of
the
algorithm
factors
are
also
made
[
0267].
 
The
commenter
believes
that
the
B,
E1
and
E2
factors
are
appropriate
[
0267].
 
This
commenter
does
not
agree
with
the
inclusion
of
a
C
(
catastrophic
reserve)
factor
on
the
grounds
that
it
seems
unrealistic
that
a
three­
month
supply
for
a
catastrophic
reserve
is
needed
and
that
Decision
IX/
6
makes
no
provision
for
such
a
catastrophic
reserve
[
0267].
 
This
commenter
also
questions
the
inclusion
of
an
N
(
stocks
to
be
set
aside
for
non­
critical
uses)
factor.
It
is
also
noted
by
this
commenter
that
"
the
Protocol
and
decisions
thereunder
make
no
provision
for
amounts
for
transition
management
in
non­
critical
use
categories
in
2005."
At
the
same
time,
however,
the
commenter
notes
that
"
this
variable
seems
appropriate
if
there
is
a
legal
basis
for
its
inclusion."
[
0267]
 
Finally,
the
commenter
makes
the
observation
that
"
if
D
is
to
be
included
in
the
equation
for
an
estimated
drawdown
of
stocks
in
2004,
it
should
only
be
done
on
the
basis
of
year­
end
stocks
information
that
EPA
requires
to
be
submitted."
[
0267]

Response
#
117:
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
10
methodology
described
in
the
proposal.
Should
EPA
utilize
this
methodology
in
future,
EPA
will
consider
these
comments
at
that
time.

2.
c.
Disclosure
of
data
(
CBI)

Commenter
Organization
Document
ID
Number
Mass
letter/
email
campaign
Sponsored
by
Natural
Resources
Defense
Council
(
NRDC)
0143
(
x
167)

Mass
letter/
email
campaign
Sponsored
by
Natural
Resources
Defense
Council
(
NRDC)
0164
(
x
9)

W.
Caffey
Norman
Patton
Boggs
LLP
0267
Connie
Metcalf
N/
A
0286
 
One
hundred
and
seventy­
six
comments,
received
as
part
of
two
mass
letter/
email
campaigns,
question
why
EPA
is
"
helping
the
big
chemical
companies
keep
their
methyl
bromide
stockpiles
secret?"
[
0143
x
167,
0164
x
9],
while
one
other
late
commenter
also
expresses
concern
about
"
the
secret
storage
places
that
big
chemical
companies
are
allowed."
[
0286]

 
One
late
commenter
asserts
that
"
no
production
should
be
authorized
until
EPA
obtains
and
makes
available
public
information
showing
that
methyl
bromide
is
not
available
in
sufficient
quantity
and
quality
from
existing
stocks."
[
0267]
 
This
commenter
does
note
however
that
"
the
proposal
makes
a
good
first
step
in
this
direction
by
requiring
that
`
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
(
CSAs)
in
the
allocation
made
in
the
final
rule."
The
commenter
suggests
that
this
requirement
be
expanded
so
that
submission
of
year­
end
stocks
information
is
also
required.
[
0267]

 
On
a
similar
note,
this
late
commenter
states
that
"
individual
company
stocks
information
should
not
be
considered
confidential
business
information
(
CBI)
and
CSAs
should
not
be
confidential."
[
0267]
 
This
commenter
believes
that
it
is
important
for
EPA
to
realize
that
"
maintaining
the
confidentiality
of
stockpile
information
impedes
both
the
public's
ability
to
understand
what
EPA
proposed
to
do
and
the
transparency
of
EPA's
final
determination."
Further,
the
commenter
makes
the
case
that
EPA's
concern,
which
is
that
publishing
the
aggregate
stockpile
amount
could
allow
the
small
number
of
producers,
importers
and
distributors
to
calculate
the
amounts
claimed
as
CBI
by
their
competitors,
will
not
apply
once
EPA
receives
information
on
stockpiles
from
a
larger
number
of
respondents.
[
0267]

Response
#
118:
EPA
is
following
its
own
regulations
regarding
responses
to
requests
for
disclosure
of
information
under
the
Freedom
of
Information
Act
and
11
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.
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.
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
12
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.
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."
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
13
(
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.
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.
In
regards
to
reporting
stocks
data,
EPA
is
requiring
entities
to
report
on
the
amounts
of
unused
critical
use
methyl
bromide.
The
preamble
to
the
final
rule
states
"
on
an
annual
basis,
producers,
importers,
distributors,
and
third­
party
applicators
are
required
to
report
to
EPA 
the
amount
of
critical
use
methyl
bromide
that
has
not
been
sold
to
an
approved
critical
user
as
of
the
end
of
the
control
period
that
the
reporting
entity
owns
[
and]
the
amount
of
critical
use
methyl
bromide
that
has
not
been
sold
to
an
approved
critical
user
that
the
reporting
entity
is
holding
on
behalf
of
another
entity
along
with
the
name
of
the
entity
who
owns
the
material."

3.
Summary
of
Comments
Relating
to
ACCESS
TO
STOCKS
3.
a.
Who
should
get
access
to
stocks
Commenter
Organization
Document
ID
Number
Billy
W.
Thomas
Georgia
Vegetable
Co.,
Inc.
0258
Indiana
Forest
Nursery
Grower
N/
A
0262
Wanda
Hamilton­
Tyler
Hamilton
Growers
0264
Alexander
J.
Ott
California
Grape
&
Tree
Fruit
League
0271
Anne
Giesecke
&
Bob
Garfield
Food
Industry
Environmental
Council
(
FIEC)
0283
 
Five
late
commenters
make
specific
remarks
regarding
who
should
get
access
to
existing
stocks
of
methyl
bromide
[
0258,
0262,
0264,
0271,
0283].
14
 
Four
of
these
commenters
believe
that
existing
stocks
should
be
made
freely
available
to
both
critical
and
non­
critical
users
[
0258,
0262,
0264,
0283].
 
One
of
these
commenters
is
only
supportive
of
critical
users
being
granted
access
to
existing
stocks
[
0271].

 
Four
of
these
late
commenters
support
access
to
existing
stocks,
whether
this
be
by
both
critical
and
non­
critical
users
or
only
critical
users,
for
one
or
more
of
the
reasons
given
below
[
0258,
0262,
0264,
0271].
 
All
four
of
these
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
[
0258,
0262,
0264,
0271].
 
Three
sets
of
comments
assert
that
access
to
existing
stocks
is
needed
to
protect
against
higher
prices
for
methyl
bromide
[
0258,
0262,
0264].
 
Three
of
these
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
[
0258,
0262,
0264].
These
commenters
state
"
it
is
unfair
to
restrict
the
use
of
these
stocks
that
were
banked
through
our
good
stewardship."
[
0258,
0262,
0264]

Response
#
119:
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
under
"
legal
basis"
in
the
on­
time
comment
document.
Those
who
chose
not
to
participate
in
the
CUE
process
do
not
obtain
new
production
and
thus
are
not
"
rewarded"
for
their
inaction.
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.
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.
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
15
thus
facilitating
movement
away
from
the
ozone
depleting
chemicals,
an
environmentally
positive
outcome.

3.
b.
Legal
basis
 
No
late
comments
were
received
in
relation
to
"
legal
basis."

4.
Summary
of
Comments
Relating
to
CAP
ON
CRITICAL
USE
METHYL
BROMIDE
Commenter
Organization
Document
ID
Number
Billy
W.
Thomas
Georgia
Vegetable
Co.,
Inc.
0258
Indiana
Forest
Nursery
Grower
N/
A
0262
Joseph
M.
Pantaleo
Florida
Golf
Course
Superintendents
Association
0263
Wanda
Hamilton­
Tyler
Hamilton
Growers
0264
David
Mueller
Fumigation
Service
&
Supply,
Inc.
0265
Alexander
J.
Ott
California
Grape
&
Tree
Fruit
League
0271
Anne
Giesecke
&
Bob
Garfield
Food
Industry
Environmental
Council
(
FIEC)
0283
 
Six
sets
of
late
comments
make
reference
to
the
type
of
allocation
system
that
should
be
utilized
[
0258,
0262,
0263,
0264,
0265,
0283].
 
Four
commenters
express
a
preference
for
the
"
lump
sum"
or
"
universal"
allocation
method
[
0258,
0262,
0263,
0264].
 
The
"
sector­
specific"
approach
is
the
allocation
method
preferred
by
one
late
commenter
[
0265].
 
In
one
set
of
comments,
the
preferred
allocation
method
is
dependent
on
the
availability
of
existing
stocks.
This
commenter
states
that
if
existing
stocks
are
fully
available
to
whomever
needs
them,
including
CUE
holders,
"
without
reference
to
a
cap
other
than
the
production
cap,
a
national
or
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."
[
0283]
 
One
commenter
does
not
specify
a
preferred
allocation
method
but
rather
requests
that
EPA
adopts
an
allocation
system
that
is
"
simple
and
straightforward
allowing
growers
to
obtain
the
necessary
material
for
their
critical
need."
[
0271]
This
commenter
also
notes
that
"
with
the
phase
out
of
methyl
bromide
less
than
three
months
away,
growers
need
a
system
that
is
flexible;
especially
since
the
CUE
program
is
a
new
process
for
the
grower."
[
0271]
In
addition
to
this,
one
other
commenter
notes
that
the
allocation
system
needs
to
be
"
fair,
grounded
in
science
and
defensible."
[
0283]
16
 
The
supporting
arguments
of
the
late
commenter
in
favor
of
the
"
sector­
specific"
allocation
method
are
given
below.
 
This
commenter
states
that
"
the
issue
is
that
the
Montreal
Protocol
is
designed
to
phase
out
all
ozone
depleting
substances.
We
believe
that
the
CUNs
were
made
for
specific
companies
at
specific
locations
and
those
CUNs
are
not
poker
chips
to
pass
around
the
table
to
use
by
anyone.
We
support
the
use
of
the
CUNs
on
the
specific
sites
in
the
appropriate
sectors."
[
0271]
 
Further
this
commenter
adds
that
"
if
strawberry
growers
phase
out
earlier
than
flour
millers
it
is
not
right
to
move
those
allocations
to
another
sector.
There
is
no
incentive
to
phase
out
if
this
is
done."
[
0271]

Response
#
120:
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
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
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.
The
Agency
believes,
and
has
received
comment
to
that
effect,
that
the
preplant
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
17
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
preplant
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.

5.
Summary
of
Comments
Relating
to
CRITICAL
USE
ALLOWANCE
ALLOCATIONS
5.
a.
Baseline
for
critical
use
allowance
distribution
 
No
late
comments
were
received
in
relation
to
"
baseline
for
critical
use
allowance
distribution."

5.
b.
Frequency
of
critical
use
allowance
distribution
 
No
late
comments
were
received
in
relation
to
"
frequency
of
critical
use
allowance
distribution."

6.
Summary
of
Comments
Relating
to
CRITICAL
STOCK
ALLOWANCE
ALLOCATIONS
 
No
late
comments
were
received
in
relation
to
"
critical
stock
allowance
allocations."

7.
Summary
of
Comments
Relating
to
TRADING
ALLOWANCES
7.
a.
Trading
within
allowance
type
18
Commenter
Organization
Document
ID
Number
W.
Caffey
Norman
Patton
Boggs
LLP
0267
 
One
of
the
late
commenters
supports
EPA's
proposal
to
"
allow
CUAs
to
be
traded
or
otherwise
transferred
subject
to
an
offset"
and
"
allow
trades
of
CSAs
without
requiring
an
offset."
[
0267]

Response
#
121:
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.

7.
b.
Trading
between
allowances
Commenter
Organization
Document
ID
Number
W.
Caffey
Norman
Patton
Boggs
LLP
0267
 
One
late
commenter
supports
EPA's
proposal
to
allow
CUAs
to
be
exchanged
for
CSAs
[
0267].
 
The
commenter
supports
a
person
holding
CUAs
being
able
to
exchange
them
for
CSAs
without
the
offset
being
applied
[
0267].

Response
#
122:
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
without
requiring
an
additional
offset.

8.
Summary
of
Comments
Relating
to
ACQUIRING
CRITICAL
USE
METHYL
BROMIDE
Commenter
Organization
Document
ID
Number
Billy
W.
Thomas
Georgia
Vegetable
Co.,
Inc.
0258
Roger
Loftus
California
Strawberry
Nurserymen's
Association
0261
Indiana
Forest
Nursery
Grower
N/
A
0262
Joseph
M.
Pantaleo
Florida
Golf
Course
Superintendents
Association
0263
Wanda
Hamilton­
Tyler
Hamilton
Growers
0264
Alexander
J.
Ott
California
Grape
&
Tree
Fruit
League
0271
19
 
Three
late
commenters
support
EPA's
proposal
that
approved
critical
users
acquire
methyl
bromide
through
a
QPS­
like
process
that
requires
self­
certification
[
0261,
0263,
0271].
 
One
commenter
requests
that
the
self­
certification
system
be
as
simple
as
possible
and
be
consistent
with
the
system
currently
used
for
QPS
exempted
methyl
bromide
[
0261].
 
One
set
of
comments
notes
that
"
a
QPS­
like
system
would
be
a
very
workable
and
practical
way
of
administering
the
CUE
program."
[
0263]
 
One
commenter
believes
that
a
QPS­
like
process
that
requires
selfcertification
"
will
reduce
the
bureaucratic
paperwork
for
the
farmer
while
continuing
to
enforce
the
necessary
reporting
requirements."
[
0271]
 
Three
commenters
are
of
the
view
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.
This
is
because
fumigation
is
done
in
advance
of
planting
the
crop
and
future
soil
pest
pressure
can
only
be
determined
on
past
history.
[
0258,
0262,
0264]

Response
#
123:
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
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.

9.
Summary
of
Comments
Relating
to
WHO
IS
AN
APPROVED
CRITICAL
USER
9.
a.
Uses
Commenter
Organization
Document
ID
Number
Roger
Loftus
California
Strawberry
Nurserymen's
Association
0261
 
One
late
commenter
simply
states
that
"
we
support
the
agency's
proposed
definition
of
approved
critical
users."
[
0261]

Response
#
124:
In
this
final
rule,
EPA
is
implementing
the
definition
of
"
approved
critical
user"
set
forth
in
the
proposed
rule,
with
minor
changes.

9.
b.
Conditions
Commenter
Organization
Document
ID
Number
Roger
Loftus
California
Strawberry
Nurserymen's
Association
0261
20
 
One
late
commenter
is
of
the
opinion
that
"
specific
conditions
delineated
in
the
rule
go
beyond
the
scope
of
the
EPA
nomination
and
the
Montreal
Protocol
exemption."
[
0261]

Response
#
125:
In
the
Nomination,
EPA
explained
the
feasibility
of
chemical
inkind
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.

 
One
late
set
of
comments
asserts
that
new
methyl
bromide
production
should
be
available
to
approved
critical
users
without
their
having
to
justify
the
use
[
0283].

Response
#
126:
EPA
is
not
permitted
to
make
exempted
material
available
to
nonexempt
uses.
EPA
is
requiring
users
who
wish
to
acquire
exempted
material
to
document
in
the
form
of
a
self­
certification
that
they
are
in
fact
approved
critical
users
and
that
they
will
use
the
quantity
of
methyl
bromide
for
an
approved
critical
use.
EPA
believes
this
is
a
streamlined
and
simple
approach
to
ensure
that
exempted
material
only
goes
to
exempted
uses.

9.
c.
New
market
entrants
Commenter
Organization
Document
ID
Number
Roger
Loftus
California
Strawberry
Nurserymen's
Association
0261
Anne
Giesecke
&
Bob
Garfield
Food
Industry
Environmental
Council
(
FIEC)
0283
 
One
late
commenter
asserts
that
the
members
of
consortia,
where
these
consortia
submitted
nominations
for
critical
use
exemptions
that
were
approved
by
the
Parties
to
the
Montreal
Protocol,
should
have
access
to
the
approved
amount
of
methyl
bromide
without
competition
from
growers
who
did
not
apply
for
an
exemption
or
who
did
not
qualify
for
an
exemption
[
0261].

 
This
same
late
commenter
does
however
agree
with
EPA
that
"
growers
who
join
a
qualified
consortium,
and
who
meet
the
qualifying
conditions,
should
also
have
the
same
access
to
exempted
methyl
bromide".
[
0261]

 
Another
late
commenter
is
of
the
opinion
that
"
new
MB
production
should
available
only
to
parties
who
invested
the
time
and
effort
to
submit
a
Critical
Use
Exemption
(
CUE)
application."
[
0283]

Response
#
127:
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
21
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
an
exemption,
even
if
the
user
was
not
a
member
of
the
consortium
at
the
time
the
application
was
filed.

10.
Summary
of
Comments
Relating
to
REPORTING
AND
RECORDKEEPING
REQUIREMENTS
10.
a.
Reporting
 
No
late
comments
were
received
in
relation
to
"
reporting."

10.
b.
Record­
Keeping
Commenter
Organization
Document
ID
No
David
Mueller
Fumigation
Service
&
Supply,
Inc.
0265
W.
Caffey
Norman
Patton
Boggs
LLP
0267
 
One
late
set
of
comments
states
that
"
a
recordkeeping
system
like
those
in
QPS
for
official
phytosanitary
certificates
should
be
installed
for
CUEs
and
CUNs",
where
"
this
record
could
then
help
track
all
fumigant
to
which
locations
in
which
amounts
and
when
it
is
used
by
whom."
[
0265]

Response
#
128:
EPA
is
requiring
recordkeeping
similar
to
the
requirements
under
the
existing
quarantine
and
preshipment
exemption.

 
One
late
commenter
supports
EPA's
proposal
that
"
producers,
importers,
distributors,
and
applicators
allocated
CSAs
file
quarterly
reports
to
EPA
on
the
number
of
expended
and
unexpended
CSAs
based
on
the
amount
of
methyl
bromide
stocks
sold
during
the
quarter
to
an
approved
critical
user."
[
0267]

Response
#
129:
EPA
is
implementing
a
framework
for
reporting
that
requires
producers
and
importers
to
file
reports
to
EPA
on
the
number
of
CSA's
expended
on
a
quarterly
basis
and
requires
reporting
from
distributors
and
applicators
on
an
annual
basis.
This
is
the
same
framework
that
EPA
proposed.
The
commenter's
characterization
of
the
proposal
is
not
entirely
correct.

10.
c.
Treatment
of
Unused
Critical
Use
Methyl
Bromide
Commenter
Organization
Document
ID
No
W.
Caffey
Norman
Patton
Boggs
LLP
0267
22
 
One
late
commenter
supports
EPA's
proposed
treatment
of
unused
critical
use
methyl
bromide
on
the
basis
that
"
this
approach
is
consistent
with
the
Montreal
Protocol
and
the
Clean
Air
Act."
[
0267]
 
Specifically,
this
commenter
supports
EPA's
proposal
"
to
include
inventories
of
methyl
bromide
produced
or
imported
with
CUAs
remaining
at
the
end
of
a
control
period
in
the
calculation
of
available
stocks
for
determining
total
CUAs
to
be
allocated
for
the
subsequent
year."
Further,
this
commenter
agrees
with
EPA
that
"
if
CUAs
are
allocated
on
a
sectorspecific
basis,
unused
methyl
bromide
could
be
used
only
for
the
approved
critical
uses
in
the
subsequent
control
period."
[
0267]

Response
#
130:
EPA
is
implementing
provisions
on
the
treatment
of
unused
exempted
material
that
are
nearly
identical
to
those
described
in
the
proposed
rule.
The
one
exception
is
that
EPA
will
reduce
the
number
of
CUAs
issued
to
take
into
account
unused
methyl
bromide
in
the
year
after
the
year
in
which
the
data
was
reported.
In
the
proposal,
EPA
indicated
that
it
would
reduce
the
number
of
CUAs
for
the
year
immediately
after
the
control
period
in
question.
However,
EPA
recognizes
that
it
would
not
have
the
all
of
the
data
reports
in
time
to
make
the
adjustment
for
the
immediately
following
year
and
is
therefore
making
the
adjustment
instead
in
the
year
immediately
following
the
final
data
report.

11.
Summary
of
Comments
Relating
to
ENFORCEMENT
PROVISIONS
Commenter
Organization
Document
ID
No
Roger
Loftus
California
Strawberry
Nurserymen's
Association
0261
Anne
Giesecke
&
Bob
Garfield
Food
Industry
Environmental
Council
(
FIEC)
0283
 
Two
late
commenters
urge
EPA
to
impose
penalties
for
misuse
that
are
consistent
with
the
severity
of
the
infractions,
where
this
means
that
the
Federal
Insecticide,
Fungicide
and
Rodenticide
Act
(
FIFRA)
penalty
guidelines,
not
Clean
Air
Act
(
CAA)
guidelines,
be
used
to
enforce
pesticide
compliance
[
0261,
0283].

Response
#
131:
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
23
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.
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.

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
Anne
Giesecke
&
Bob
Garfield
Food
Industry
Environmental
Council
(
FIEC)
0283
 
One
late
commenter
asserts
that
"
attempting
to
control
MB
usage
at
the
user
level
would
be
cumbersome"
and
further
that
"
control
should
be
focused
on
the
MB
manufacturer
or
importer."
[
0283]

Response
#
132:
EPA
concurs
that
controlling
methyl
bromide
usage
at
the
user
level
would
be
cumbersome
and
is
instead
implementing
a
regulatory
framework
that
focuses
on
the
chemical
supply
and
distribution
chain.

12.
b.
Historic
Baseline
Approach
 
No
late
comments
were
received
in
relation
to
"
historic
baseline
approach."

12.
c.
Auctions
24
 
No
late
comments
were
received
in
relation
to
"
auctions."

12.
d.
Redeemable
System
 
No
late
comments
were
received
in
relation
to
"
redeemable
system."

13.
Summary
of
Comments
Relating
to
EPA
TREATMENT
OF
BASELINE
AND
INVENTORY
DATA
 
No
late
comments
were
received
in
relation
to
"
EPA
treatment
of
baseline
and
inventory
data."

14.
Summary
of
Comments
Relating
to
ECONOMICS
AND
THE
REGULATORY
IMPACT
STATEMENT
 
No
late
comments
were
received
in
relation
to
"
economics
and
the
regulatory
impact
statement."

15.
Summary
of
Comments
Relating
to
BURDEN
ASSOCIATED
WITH
THIS
REGULATORY
SYSTEM
 
No
late
comments
were
received
in
relation
to
"
burden
associated
with
this
regulatory
system."

16.
Summary
of
Comments
Relating
to
NEED
FOR
AN
EXPORT
MECHANISM
 
No
late
comments
were
received
in
relation
to
"
need
for
an
export
mechanism."

17.
Summary
of
Comments
Relating
to
the
RULEMAKING
AND
REGULATORY
PROCESS
Commenter
Organization
Document
ID
No
Anne
Giesecke
&
Bob
Garfield
Food
Industry
Environmental
Council
(
FIEC)
0283
 
One
late
commenter
states
that
"
the
Montreal
Protocol
(
MP)
permits
CUEs,
and
EPA
and
the
MP
Parties
approved
the
CUE
process"
and
that
given
this,
"
it
would
25
be
indefensible
if
the
Agency
delayed
issuing
the
rule
that
completes
that
process."
[
0283]
 
This
commenter
suggests
that
"
the
Agency
should
take
as
simple
and
straight
forward
an
approach
as
possible
and
move
forward
with
the
process
that
will
allow
continued
and
proven
responsible
use
of
methyl
bromide
for
the
food
and
agricultural
sectors."
[
0283]

Response
#
133:
EPA
is
implementing
the
critical
use
exemption
as
expeditiously
as
possible.
EPA
is
also
implementing
mechanisms
that
are
streamlined
and
simple
while
ensuring
compliance
with
Montreal
Protocol
obligations.
