
­
1­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
SUMMARY
OF
PUBLIC
COMMENTS
FOR
THE
NOTICE
OF
PROPOSED
RULEMAKING:
THE
2006
CRITICAL
USE
EXEMPTION
FROM
THE
PHASEOUT
OF
METHYL
BROMIDE
1.
SUMMARY
OF
COMMENTS
RELATING
TO
THE
PROPOSED
CRITICAL
USES...........................
2
1.
A.
PROPOSED
CRITICAL
USES
....................................................................................................................
2
1.
B.
LIMITING
CRITICAL
CONDITIONS...........................................................................................................
3
2.
SUMMARY
OF
COMMENTS
RELATING
TO
CRITICAL
NEED
FOR
METHYL
BROMIDE..........
8
2.
A.
TOTAL
LEVEL
OF
CRITICAL
NEED
.........................................................................................................
8
2.
B.
VERIFICATION
OF
STATE
REGISTRATIONS
ALLOWING
THE
USE
OF
SULFURYL
FLUORIDE
.........................
9
2.
C.
ESTIMATED
UPTAKE
OF
SULFURYL
FLUORIDE
.....................................................................................
10
2.
D.
BARRIERS
TO
ADOPTING
OTHER
ALTERNATIVES..................................................................................
14
2.
E.
POST­
HOC
REVIEW
.............................................................................................................................
16
3.
SUMMARY
OF
COMMENTS
RELATING
TO
THE
SOURCES
OF
CRITICAL
USE
METHYL
BROMIDE..........................................................................................................................................................
17
3.
A.
PROPORTION
OF
CRITICAL
USE
METHYL
BROMIDE
FROM
PRE­
PHASEOUT
INVENTORIES
AND
FROM
NEW
PRODUCTION/
IMPORT.......................................................................................................................................
17
3.
B.
PETITION
PROCESS
AND
REQUIREMENTS
FOR
ALLOWING
CRITICAL
STOCK
ALLOWANCES
TO
BE
EXCHANGED
FOR
CRITICAL
USE
ALLOWANCES
.................................................................................................
21
4.
SUMMARY
OF
COMMENTS
RELATING
TO
CRITICAL
USE
ALLOWANCE
ALLOCATIONS..
23
4.
A.
TOTAL
LEVELS
OF
EXEMPTED
PRODUCTION/
IMPORT
FOR
CRITICAL
USES
.............................................
23
4.
B.
ALLOCATION
OF
CUAS
INTO
SECTOR
SPECIFIC
GROUPINGS
VERSUS
PRE­
PLANT
AND
POST­
HARVEST
GROUPINGS......................................................................................................................................................
24
5.
SUMMARY
OF
COMMENTS
RELATING
TO
CRITICAL
STOCK
ALLOWANCE
ALLOCATIONS
25
6.
SUMMARY
OF
COMMENTS
RELATING
TO
CLARIFICATIONS
TO
THE
FRAMEWORK
RULE
26
7.
SUMMARY
OF
COMMENTS
RELATING
TO
RULEMAKING
AND
THE
REGULATORY
PROCESS...........................................................................................................................................................
27
­
2­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
1.
Summary
of
Comments
Relating
to
the
PROPOSED
CRITICAL
USES
1.
a.
Proposed
Critical
Uses
Commenter
Organization
Document
ID
No
William
Murray
American
Forest
&
Paper
Association
1
Dr.
Scott
Enebak
Southern
Forest
Nursery
Management
Cooperative
0152,
0152­
A,
0169
Philip
Wilson
Mississippi
Forestry
Commission
0153
Anonymous
None
0154
David
Doniger
Natural
Resources
Defense
Council
0173
Gene
Harrington
NPMA
0174
 
Four
commenters
state
that
the
Members
of
the
Southern
Forest
Nursery
Cooperative
were
not
listed
as
Approved
Critical
Users,
even
though
other
consortium
members
are
listed
as
they
were
in
previous
rules
(
e.
g.,
Weyerhaeuser,
International
Paper,
Michigan
Growers).
One
commenter
notes
that
they
were
informed
by
EPA
that
this
omission
was
inadvertent
and
the
Cooperative
would
be
returned
to
the
final
rulemaking.
[
1]
These
commenters
request
that
the
proposed
rule
be
amended
to
reflect
the
previous
CUE
Rules
for
Approved
Critical
User
and
Location
of
Use,
which
was:

"
Members
of
the
Southern
Forest
Nursery
Management
Cooperative
limited
to
growing
locations
in
Alabama,
Arkansas,
Florida,
Georgia,
Louisiana,
Mississippi,
North
Carolina,
Oklahoma,
South
Carolina,
Tennessee,
Texas,
and
Virginia."
[
0152,
0152­
A,
0153,
0154,
0169]

 
One
commenter
believes
that
the
Southern
Forest
Nursery
Cooperative
should
represent
individual
members
in
the
ruling.
[
0154]

Response:
EPA
agrees
that
the
Southern
Forest
Nursery
Management
Cooperative
should
have
been
listed
as
an
approved
critical
user.
The
Cooperative
filed
a
critical
use
exemption
application
with
EPA
and
the
forest
seedling
sector
was
approved
by
the
Parties
as
an
agreed
critical
use
category
for
2006.
Therefore
EPA
is
correcting
the
Table
of
Approved
Critical
Users
to
reflect
this
consortia.

 
One
commenter
is
concerned
about
the
characterization
of
the
exemption
for
NPMA
members.
Specifically,
the
commenter
is
concerned
that
the
phrase
"
dry
commodity
fumigation"
does
not
make
it
clear
that
the
commodity
will
be
fumigated
as
part
of
a
space
fumigation.
The
commenter
also
requests
that
EPA
clarify
whether
critical
use
methyl
bromide
may
be
used
for
dried
milk.
Noting
the
May
2005
TEAP
Report,
which
states
that
the
"
component
of
the
nomination
for
milk
processing
facilities
has
been
withdrawn,"
this
commenter
maintains
that
dried
milk
is
still
a
justifiable
exemption.
This
commenter
suggests
that
the
language
used
to
describe
NPMA
be
changed
to:

"
Members
of
the
National
Pest
Management
Association
treating
cocoa
beans
in
storage
and
associated
spaces
and
equipment
and
processed
food,
cheese,
­
3­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
dried
milk,
herbs,
and
spices
and
spaces
and
equipment
in
associated
processing
facilities."
[
0174]

Response:
EPA
notes
that
the
May
2005
TEAP
report
(
p.
24)
eliminated
dried
milk
as
an
approved
critical
use.
However,
the
Parties
to
the
Protocol
approved
this
use
in
Decision
Ex.
II/
I,
taken
on
July
1,
2005.
In
Table
A
of
the
Annex,
"
dry
commodities/
structures
(
processed
food,
herbs,
spices,
dried
milk
and
cheese
processing
facilities"
are
approved
critical
uses.
Therefore,
EPA
is
authorizing
dried
milk
as
an
approved
critical
use,
and
adding
cheese
processing
facilities
to
the
Table
as
well.

One
commenter
objects
to
the
final
portion
of
the
proposed
rule
that
grants
domestic
approval
to
critical
use
categories
not
yet
fully
reviewed
or
approved
in
a
Decision
of
the
Parties.
This
commenter
believes
that
EPA's
current
proposal
would
reject
the
obligation
for
a
second
look
by
the
U.
S.
to
assure
compliance
with
the
Decision
IX/
6
conditions
and
would
deprive
the
public
of
the
opportunity
to
comment
on
EPA's
proposed
result.
[
0173]

Response:
EPA
was
as
specific
as
possible
in
the
October
27,
2005
proposed
rule
regarding
the
size
and
nature
of
the
supplemental
request
in
order
to
provide
the
public
a
full
opportunity
to
comment.
There
is
no
significant
new
information
to
put
before
the
public
at
this
time.
Therefore,
a
second
comment
period
is
unnecessary.
The
commenter
suggests
that
EPA
take
a
second
look
at
the
supplemental
amount
on
the
basis
of
the
most
up­
to­
date
information.
However,
in
this
instance
the
information
that
formed
the
basis
of
the
Parties'
decision
is
the
most
up­
to­
date
information
available.
That
information
was
included
in
the
U.
S.
response
to
MBTOC,
submitted
in
August
2005.

1.
b.
Limiting
Critical
Conditions
Commenter
Organization
Document
ID
Number
Dow
Dow
AgroSciences
0157.1
Gene
Harrington
NPMA
0174
 
One
commenter
requests
EPA
to
amend
the
phrase
"
moderate
to
severe
beetle
or
moth
infestation,"
found
under
the
"
Limited
Critical
Condition"
column
on
pg.
62054,
to
read
"
moderate
to
severe
pest
infestation."
The
commenter
expresses
concern
that
a
strict
interpretation
of
"
beetles
and
moths"
would
prevent
the
fumigation
of
other
significant
medical
pests.
[
0174]

Response:
EPA
agrees
with
the
commenter's
suggestion
and
has
incorporated
this
suggestion.

 
One
commenter
specifically
notes
its
agreement
that
there
are
situations
and
conditions
where
continued
use
of
MB
is
justified
and
that
the
test
of
Limiting
Critical
Conditions
(
LCCs)
should
be
applied
for
each
critical
user
at
the
time
of
licensing
for
each
critical
use.
This
commenter
emphasizes
that
the
LCCs
must
be
reviewed
and
updated
frequently
as
the
registration
status
and
regulatory
restrictions
for
methyl
bromide
and
alternatives.
With
­
4­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
respect
to
the
specific
LCCs,
the
commenter
believes
that
there
are
several
examples
where
the
proposed
LCCs
do
not
adequately
consider
the
availability
and
utility
of
alternatives
and
where
the
LCCs
need
to
be
refined
to
describe
the
limiting
conditions
more
accurately.

Response:
The
U.
S.
Nomination
describes
the
limitations
of
alternatives
for
the
specific
circumstances
of
the
nominated
acreage,
and
only
requests
methyl
bromide
in
instances
where
alternatives
are
not
available
or
do
not
provide
sufficient
levels
of
pest
control.
As
the
Nomination
is
a
document
compiled
on
an
annual
basis,
EPA
considers
the
most
up­
to­
date
research
and
technical
information
and
describes
each
sector
in
a
detailed
fashion.
EPA
describes
the
specific
circumstances
that
make
alternatives
not
technically
or
economically
feasible
for
a
portion
of
domestic
uses
in
every
nomination.

In
the
final
Framework
rule
(
69
FR
76982)
EPA
described,
and
responded
to,
comments
on
specific
LCCs.
For
example,
in
the
corresponding
proposal,
EPA
had
listed
"
moderate
to
severe
nematode
pressure"
as
a
LCC.
However,
in
the
final
rule,
EPA
eliminated
the
LCC
of
"
moderate
to
severe
nematode
pressure"
in
all
uses
except
Michigan
tomatoes
because
the
commenter
correctly
stated
that
there
were
effective
alternatives
to
control
this
condition
when
it
occurs
alone.
EPA
also
eliminated
"
moderate
to
severe
pathogens"
in
all
uses
except
Michigan
tomatoes,
and
modified
the
buffer
zone
LCC
to
reflect
recent
label
changes
that
reduced
the
buffer
zone
to
100
feet
from
an
occupied
structure.
EPA
will
continue
to
modify
the
LCCs
accordingly
as
to
reflect
current
circumstances
and
label
changes,
but
only
received
one
series
of
comments
pertaining
to
the
LCCs
for
the
2006
critical
use
exemption
rule.

Regarding
the
test
of
LCCs
that
should
be
applied
for
each
critical
user
at
the
time
of
licensing
for
each
critical
use,
EPA
notes
that
each
user
is
required
to
complete
a
selfcertification
form.
The
self­
certification
language
can
be
found
in
Section
82.13,
40
CFR
part
82.
The
certification
also
identifies
the
acreage/
square
footage
treated.
A
user
cannot
complete
the
self­
certification
form
if
s/
he
is
not
subject
to
the
corresponding
LCCs
for
each
sector.
The
penalties
for
not
following
these
requirements
can
be
found
in
the
final
allocation
framework
rule
(
69
FR
76982).

The
commenter
points
out
the
qualifying
statement
in
the
LCCs
that
in
order
to
meet
the
criteria
for
a
LCC
each
critical
user
must
have
a
"
reasonable
expectation
that
one
or
more
of
the
following
limiting
critical
condition
either
already
exists
or
could
occur "
and
argues
that
in
order
to
ensure
the
accuracy
and
validity
of
all
LCC
claims,
methyl
bromide
critical
users
should
provide
documentation
that
would
form
the
basis
for
these
"
reasonable
expectations."
For
LCCs
that
do
not
vary
year­
to­
year,
the
commenter
believes
that
providing
the
documentation
would
be
a
one­
time
event;
for
situations
where
the
LCCs
vary
between
control
periods,
supporting
information
should
be
required
for
each
instance
(
e.
g.,
field
or
structures)
where
methyl
bromide
allocations
are
requested.
This
commenter
believes
that
in
order
to
ensure
that
the
limited
methyl
bromide
is
allocated
properly,
information
on
the
specific
circumstances
of
each
use
site
and
documentation
from
an
independent
source
demonstrating
the
basis
for
the
reasonable
expectation
must
be
required.
The
commenter
also
notes
that
2005
critical
use
allocations
should
benefit
from
the
information
and
experiences
of
the
2005
critical
uses.
­
5­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
Response:
These
comments
appear
to
be
outside
the
scope
of
the
proposal.
However,
the
reporting
and
recordkeeping
requirements
published
in
the
framework
rule
are
tools
to
ensure
that
methyl
bromide
is
allocated
properly.
The
framework
rule
also
details
the
penalties
for
end­
users,
producers,
importers,
distributors,
and
applicators
who
fail
to
follow
the
regulations.

Having
an
independent
source
verify
the
basis
for
reasonable
expectation
would
be
burdensome
and
costly
for
end­
users
and
applicators.
Applications
are
reviewed
and
analyzed
thoroughly
by
EPA
and
other
U.
S.
government
experts,
and
end­
users
must
self­
certify
that
they
are
approved
critical
users.
Users
must
submit
applications
to
EPA
three
years
in
advance.
An
additional
certification
process
and
additional
documentation
would
prove
too
burdensome
for
end­
users.
However,
many
growers
are
in
contact
with
extension
agents,
and
in
California,
Agricultural
Commissioners
keep
detailed
records
of
pest
pressure.
[
will
verify
this.]

This
same
commenter
also
provides
criticism
of
several
of
the
LCCs
listed
in
the
proposed
ruling.
The
commenter
notes
specifically,
however,
that
its
comments
are
relevant
only
to
the
viability
of
products
produced
by
the
commenter
or
used
in
combination
with
the
commenter's
products.
[
0157.1]

Pre­
Plant
Uses
-
Yellow
or
Purple
Nutsedge:
The
commenter
believes
this
LCC
should
not
be
used
as
a
criteria
for
determining
the
need
for
methyl
bromide
in
all
situations.
The
commenter
believes
that
several
herbicides
(
Sandea
®
,
Envoke
®
,
Dual
®
Magnum,
and
metam
sodium,
Treflan
®
,
and
Devrinol
®
when
used
with
1,3
D)
are
commercially
available
for
use
on
tomatoes,
peppers,
and
other
crops.
The
commenter
believes
that
yellow
and
purple
nutsedge
should
only
qualify
as
an
LCC
when
it
can
be
demonstrated
by
users
that
these
products
are
not
viable
for
controlling
nutsedge
on
their
particular
fields.
This
commenter
also
provided
information
demonstrating
the
utility
of
these
new
herbicides
in
controlling
nutsedge.

Response:
EPA
wishes
to
reiterate
that
the
Nomination
is
only
for
those
areas
where
alternatives
are
not
effective
against
pests.
For
example,
in
Florida,
areas
without
Karst
geology
and
having
low
nutsedge
pressure
can
successfully
employ
a
fumigation
relying
on
1,3­
D
and
chloropicrin.
(
2004
CUN,
Tomatoes:
p.
10)
Areas
that
use
methyl
bromide
do
so
because
hilly
terrain,
cold
soil
temperatures,
and
heavy
pest
pressure 
including
yellow
and
purple
nutsedge
in
the
Southeastern
U.
S. 
preclude
the
use
of
fumigants
that
are
employed
when
these
conditions
are
not
present.

-
Nematodes:
The
commenter
states
that
1,3­
D
is
widely
recognized
as
a
highly
effective
nematicide
and
is
used
by
several
crops
in
the
U.
S.
that
face
nematode­
only
soil
pests.
Thus,
this
commenter
believes
that
nematode
infestation
is
not
sufficient
to
justify
a
methyl
bromide
critical
use.
This
commenter
also
provided
information
demonstrating
the
utility
of
1,3­
D
in
controlling
nematodes.

Response:
At
moderate
to
severe
pest
pressure,
only
MeBr
can
effectively
control
the
target
pests
found
in
the
Eastern
U.
S.,
which
includes
nematodes.
Related
dosage
rates
of
202
kg/
ha
­
6­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
are
below
the
threshold
in
recent
MBTOC
reports,
making
further
reductions
difficult
to
achieve
without
compromising
pest
management.
In
the
California
strawberry
sector,
nematodes
are
among
the
target
pests
controlled
with
methyl
bromide
at
moderate­
severe
pressure.
MeBr
applications
in
California
are
typically
made
at
67:
33,
or
where
feasible,
57:
43
mixtures
with
chloropicrin
under
plastic
mulch.
It
should
be
noted
that
the
California
strawberry
sector
has
consistently
reduced
their
MeBr
requests
since
the
inception
of
the
CUE
program.

-
Fungal
Pathogens:
The
comment
believes
that
chloropicrin,
either
alone
or
in
combination
with
1,3­
D,
has
demonstrated
excellent
control
of
soil­
borne
pathogens
and
therefore
that
fungal
pathogens
should
not
justify,
by
itself,
a
critical
use.
This
commenter
also
provided
information
demonstrating
that
products
that
contain
1,3­
D
and
chloropicrin
provide
effective
nematode
and
disease
control.

Response:
EPA
is
aware
that
1,3­
D
can
provide
adequate
control
of
fungal
pathogens
in
certain
circumstances.
For
example,
in
the
orchard
replant
sector
(
California)
armellaria
and
phytopthora
are
pathogens
that
are
considered
key
pests
that
contribute
to
orchard
replant
disorder.
EPA
understands
that
alternatives
such
as
1,3­
D
are
effective
in
reducing
the
effects
of
orchard
replant
disorder
where
there
are
no
legal
restrictions
and
in
light,
sandy
loam
soils,
and
where
there
is
acceptable
soil
moisture.
In
other
situations,
where
soils
are
medium
to
heavy,
or
where
township
caps
are
applicable,
MeBr
is
the
only
compound
that
can
effectively
target
root
remnants
from
previous
orchard
trees.
(
2004
CUN,
Orchard
Replant:
p.
16)

-
Occupied
Structures:
The
commenter
provides
an
alternate
interpretation
of
the
proposed
LCC
related
to
the
presence
of
occupied
structures
within
100ft
of
a
100
acre
(
or
less)
field.
The
commenter's
interpretation
is
that
the
LCC
would
be
relevant
to
the
impacted
fraction
of
the
field.
That
is,
if
an
occupied
structure
precluded
3%
of
a
100
acre
field
from
being
treated
with
a
methyl
bromide
alternative,
then
3%
of
the
field
would
be
justified
for
an
LCC.
The
commenter
notes
that
local
buffer
zone
requirements
for
the
use
of
methyl
bromide
may
alter
the
"
occupied
structure"
LCC,
and
if
the
buffer
zone
requirement
is
comparable
for
both
methyl
bromide
and
its
alternatives,
the
occupied
structure
LCC
would
not
be
justifiable.

Response:
The
U.
S.
estimates
of
the
area
impacted
by
100ft
buffer
zones
are
based
on
estimated
from
applicants
and
alternatives
manufacturers
and
include
factors
such
as:
average
field
size,
the
density
of
habitable
structures
near
strawberry
fields,
population
distributions,
and
surveys
by
extension
agents.
In
the
Eastern
U.
S.,
however,
there
are
many
"
pick­
yourown
strawberry
farms
(
less
than
4
hectares)
where
the
impact
of
a
100ft
buffer
zone
is
more
pronounced
than
on
larger
farms
in
California
and
Florida.
(
2005
CUN,
Strawberry
Fruit:
p.
35).
EPA
believes
that
the
buffer
zone
requirements
apply
to
the
presence
of
occupied
structures
within
100ft
of
a
100
acre
(
or
less)
field.

-
Township
Limits:
The
commenter
believes
that
this
should
only
be
a
LCC
if
the
1,3­
D
allocation
limit
has
been
met
for
the
particular
township
for
the
critical
user.
This
commenter
notes,
however,
that
Cal­
DPR
in
2002
instituted
the
"
California
Management
Plan:
1,3­
Dichloropropene,"
which
allows
1,3­
D
to
be
made
available
to
growers
beyond
the
current
1X
cap
levels,
and
that
in
some
regions
of
California,
growers
have
been
able
to
access
amounts
greater
than
2X
the
amount
of
1,3­
D
that
was
referred
to
in
the
TEAP
­
7­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
report.
The
commenter
also
points
out
that
1,3­
D
allocation
limits
may
vary
across
years
and
townships,
so
that
it
is
not
appropriate
to
state
the
specific
limit
of
these
township
allocations
in
Appendix
L.
Lastly,
the
commenter
notes
that
the
township
allocation
limits
in
California
have
been
rarely
exceeded
since
they
were
established
in
1996.
[
0157.1]

Response:
EPA
recognizes
that
1,3­
D
allocation
limits
may
vary
across
years
and
townships,
but
did
not
specifically
state
the
specific
limit
of
these
township
allocations
in
Appendix
L.
Instead,
in
the
table
of
LCCs,
EPA
stated
" 
a
prohibition
on
the
use
of
1,3­
D
dichloropropene
products
because
local
township
limits
for
this
alternative
have
been
reached."
EPA
continues
to
support
listing
township
caps
as
a
relevant
LCC
for
California
crops.
In
the
past,
EPA
has
been
made
aware
of
at
least
two
townships
where
the
limit
has
been
exceeded,
but
continues
to
support
the
use
of
1,3­
D
and
other
alternatives
in
areas
where
there
is
lighter
pest
pressure
and
where
township
cap
limits
have
not
yet
been
exceeded.

Post­
Harvest
Uses
With
respect
to
post­
harvest
uses,
this
commenter
believes
that
it
is
important
that
the
LCCs
and
their
requirement
be
updated
to
reflect
the
new
registrations
of
sulfuryl
fluoride.
This
commenter
points
out
that
when
the
2006
CUNs
were
being
prepared,
heat
and
phosphine
were
the
best
alternatives
to
methyl
bromide
in
post­
harvest
applications,
and
that
with
the
registration
of
sulfuryl
fluoride,
the
following
LCCs
should
be
removed
from
the
proposed
rule.

Response:
EPA
will
address
additional
comments
below,
but
notes
that
reductions
in
postharvest
CUAs
have
been
made
in
the
final
rule,
accounting
for
increased
uptake
of
sulfuryl
fluoride.

-
Food
Processing
Facilities
with
Older
Structures
that
Cannot
be
Properly
Sealed:
The
commenter
believes
that
because
the
volatility
properties
of
methyl
bromide
are
not
significantly
different
from
sulfuryl
fluoride
and
other
structural
fumigant
alternatives,
there
is
no
basis
to
grant
methyl
bromide
access
based
on
the
ability
to
seal
a
structure.

Response:
EPA
wishes
to
reiterate
that
the
Nomination
is
only
for
those
areas
where
the
use
of
alternatives
is
not
feasible.
In
addition,
sanitation
and
IPM
are
used
to
manage
pest
populations
and
extend
the
time
between
fumigations.
EPA
has
encouraged
all
applicants
to
seal
their
structures,
but
recognizes
that
older
food
processing
facilities,
especially
those
constructed
of
wood,
experience
more
frequent
and
severe
pest
infestations
that
must
be
controlled
by
fumigation.

-
Food
Processing
Facilities
with
the
Presence
of
Sensitive
Electronic
Equipment:
The
commenter
believes
that
this
should
not
be
a
LCC
because
sulfuryl
fluoride
is
not
corrosive
to
sensitive
electronic
equipment.

Response:
In
the
2004
CUN,
EPA
notes
that
the
corrosive
nature
of
phosphine
on
certain
metals
prevents
its
use
in
mechanical
and
electrical
areas
of
the
facilities.
The
corrosive
nature
of
phosphine
is
one
of
the
reasons
why
methyl
bromide
is
still
necessary
in
some
instances.
EPA
also
notes
that
the
industry
is
trying
to
incorporate
sulfuryl
fluoride
into
their
best
management
practices
and
has
amended
the
2006
CUE
allocation
accordingly.
­
8­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
-
Commodity
Storage­
Rapid
Fumigation:
The
commenter
believes
that
"
rapid
fumigation"
no
longer
justifies
a
LCC
because
sulfuryl
fluoride
is
equally
as
effective
as
methyl
bromide
in
performing
rapid
fumigations.
[
0157.1]

Response:
MeBr
is
used
primarily
to
treat
stored
agricultural
commodities
during
very
short
periods,
during
the
peak
production
season,
shortly
after
the
harvest
before
they
can
be
stored
and/
or
shipped.
Alternatives
are
used
in
instances
where
there
is
lighter
pest
pressure
and
where
the
character
of
the
final
product
does
not
change
as
a
result
of
fumigation
with
alternatives.

2.
Summary
of
Comments
Relating
to
CRITICAL
NEED
FOR
METHYL
BROMIDE
2.
a.
Total
Level
of
Critical
Need
Commenter
Organization
Document
ID
Number
Steve
Kleine
None
2
Barbara
Caro
None
3
Tamara
Pessah
None
4
Barbara
Sachu
None
0151
Barry
Bidwell
California
Grape
&
Fruit
Tree
League
0165,
0167.1
Victor
Lilley
Berry
Tyme
Farms
0166
Kirk
Hunter
Turfgrass
Producers
International
0168.1
David
Doniger
Natural
Resources
Defense
Council
0173,
0173.2,
0173.3
Marylinn
Schwanitz
None
0179
 
Four
commenters
believe
that
there
are
no
urgent
needs
for
methyl
bromide,
so
its
use
should
be
banned.
[
2,
3,
4,
0151,
0179]
Several
of
these
commenters
state
that
the
use
of
methyl
bromide
is
in
violation
of
the
Montreal
Protocol
and
others
state
that
methyl
bromide
threatens
the
ozone
layer
and
the
health
of
the
American
public.
One
commenter
also
believes
that
there
has
been
sufficient
time
for
users
to
develop
alternatives.
[
0179]

Response:
EPA
has
addressed
these
comments
in
the
Preamble
of
the
Final
Rule.

 
One
commenter
believes
that
EPA
has
failed
to
comply
with
the
criteria
established
Decision
IX/
6
by
not
carrying
out
its
duty
to
determine
whether
the
amount
of
methyl
bromide
it
proposed
to
authorize
for
critical
uses
reflects
all
technological
and
economically
feasible
steps
to
minimize
its
use
and
emissions.
Additionally,
the
commenter
believes
that
EPA
recognizes
that
the
status
of
methyl
bromide
alternatives
may
have
changed
since
the
May
2005
MBTOC
report,
which
would
justify
the
use
of
less
methyl
bromide,
but
has
shifted
the
duty
of
submitting
"
adequate
quantitative
information"
to
the
public.

Response:
The
commenter
may
be
confusing
two
different
portions
of
Decision
IX/
6.
EPA's
consideration
of
new
information
is
discussed
in
the
Preamble.
As
the
commenter
states,
EPA
does
recognize
that
the
status
of
methyl
bromide
alternatives
has
changed
since
the
May
2005
and
has
reduced
the
post­
harvest
critical
use
allowances
(
CUAs)
accordingly.
By
requesting
additional
information
from
the
public,
EPA
was
simply
seeking
additional
data
on
alternatives.
The
commenter
did
not
mention
any
specific
further
steps,
in
addition
to
those
described
in
the
­
9­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
Nomination,
that
could
be
taken
to
"
minimize
the
critical
use
and
any
associated
emission
of
methyl
bromide."

This
commenter
believes
that
total
usage
data
from
2004
was
lower
than
the
level
claimed
to
be
critical
for
2006.
They
have
previously
requested
total
usage
data
from
2004
(
in
comments
on
the
proposed
supplemental
critical
use
allocation
for
2005)
be
made
publicly
available,
which
is
now
available
and
feel
this
information
will
demonstrate
the
lack
of
rational
basis
for
the
proposed
rule.
Furthermore,
the
commenter
states
that
EPA
cannot
avoid
considering
this
aggregate
usage
data
by
claiming
that
only
individual,
use­
by­
use
data
can
trigger
the
obligations
for
a
"
post
hoc"
assessment
of
technological
and
economical
feasibility.
They
feel
that
aggregate
usage
data
is
a
more
reliable
than
use­
by­
use
data
(
citing
the
NRDC's
opening
and
reply
briefs
in
NRDC
v.
EPA).
[
0173.1]

This
commenter
further
states
that
the
proposed
critical
use
allowances
exceed
demand.
The
total
usage
for
2003
demonstrates
that
the
amount
of
methyl
bromide
used
in
2003,
calculated
as
production
plus
import
minus
export
plus
draw­
down
from
stocks
(
7,764
metric
tons),
is
lower
than
the
amounts
requested
for
critical
uses
in
2005
and
2006
(
8,075
metric
tons)
by
nearly
5%.
Further
information
is
provided
in
an
attachment.
[
0173,
0173.3]

Response:
EPA's
estimates
of
use
vary
by
approach
(
top­
down
v.
bottom­
up,
etc.)
The
amount
of
CUE
methyl
bromide
requested
was
the
result
of
a
robust
technical
and
economic
analysis
undertaken
for
every
sector,
and
did
not
include
additional
growth.
For
additional
information
on
use
estimates,
see
the
Response
to
Comment
document
for
the
Framework
rule
(
pp.
7­
8).

 
Three
commenters
are
of
the
opinion
that
EPA's
proposed
rule
may
include
assumptions
that
underestimate
the
2006
requirements
for
methyl
bromide.
[
0165,
0167.1,
0166,
0168.1]
One
commenter
addresses
pest
pressures
including
yellow
and
purple
nutsedge
as
well
as
the
inadequacies
of
alternatives,
including
ineffectiveness,
long
waiting
periods,
application
regimes,
and
worker
safety.
[
0166]
Another
commenter
is
concerned
about
the
reduction
in
new
production
allocated
for
pre
plant
uses
in
2006
by
over
2
million
pounds
from
the
2005
allocation
when
no
new
alternatives
have
been
registered
and
the
gulf
storms
in
2005
will
likely
result
in
higher
methyl
bromide
usage.
[
0168.1]

Response:
EPA
wishes
to
reiterate
that
the
2006
request
was
based
on
careful
analysis,
and
was
for
those
areas
where
alternatives
are
not
feasible.
EPA
accounts
for
regulatory
and
other
variables
that
would
preclude
the
use
of
alternative
fumigants
when
developing
the
CUN.
With
regard
to
the
reduction
from
2005,
EPA
wishes
to
note
that
the
U.
S.
was
granted
approximately
90
percent
of
its
request
from
the
Parties.

2.
b.
Verification
of
State
Registrations
Allowing
the
Use
of
Sulfuryl
Fluoride
Commenter
Organization
Document
ID
Number
Bruce
A.
Houtman
Dow
AgroSciences
0164,
0178
Dow
Dow
AgroSciences
0177
­
10­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
 
One
commenter
provided
attachments
regarding
the
state
registration
status
of
ProFume
gas
fumigant.
All
states
have
now
granted
registration
status
to
ProFume
gas.
[
0164,
0177,
0178]
Response:
EPA
notes
and
appreciates
this
submission.

2.
c.
Estimated
Uptake
of
Sulfuryl
Fluoride
Commenter
Organization
Document
ID
Number
William
Murray
American
Forest
&
Paper
Association
1
Miriam
Borja
Western
Industries
5
Dan
Jenkins
Dow
AgroSciences
LLC
6,
7
Suresh
Prabhakaran
Dow
AgroSciences
LLC
0155,
0155.1,
0155.2,
0155.3,
0155.4,
0155.6,
0155.7,
0155.8,
0155­
A
Dow
Dow
AgroSciences
0157.1
Susan
Lewis
Methyl
Bromide
Industry
Panel
of
the
American
Chemistry
Council
0158.1,
0161.1
Dennis
Balint
CA
Walnut
Commission
0159.1
Mark
Reddick
Reddick
Fumigants
0160.1
Henry
Giclas
Western
Growers
0162.1
Victor
Lilley
Berry
Tyme
Farms
0166
Kirk
Hunter
Turfgrass
Producers
International
0168.1
Stephen
Payne
The
Pet
Food
Institute
0170
David
Doniger
Natural
Resources
Defense
Council
0173
Gene
Harrington
NPMA
0174
Steve
Hensley
USA
Rice
0175
Steven
Hamilton
The
Urban
Environmental
Affairs
Council
0176
Dow
Dow
AgroSciences
0177
 
Nine
commenters
believe
that
EPA
has
not
provided
a
sufficient
rationale
to
justify
the
15%
reduction
in
the
amount
of
methyl
bromide
allocated
to
post­
harvest
uses
to
account
for
use
of
sulfuryl
fluoride.
These
ten
commenters
believe
that
actual
data
on
the
use
of
methyl
bromide
in
post­
harvest
applications
will
be
available
in
early
2006
and
suggest
that
this
data
be
used
to
determine
the
uptake
of
sulfuryl
fluoride
in
2005
and
as
the
basis
for
future
adjustments
to
the
post­
harvest
use
levels.
[
5,
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0175]

Response:
EPA
has
addressed
these
comments
in
the
Preamble.

-
Eight
commenters
further
note
that
in
the
2005
CUE
rule,
EPA
stated
that
it
did
not
have
sufficient
data
to
conduct
a
technical
and
economic
analysis
to
determine
the
accurate
market
uptake
of
sulfuryl
fluoride
and
that
it
would
require
5
fumigation
cycles
of
use
before
the
efficacy
of
sulfuryl
fluoride
could
be
determined.
These
commenters
find
no
indication
that
this
data
is
now
available
and
states
that
EPA
has
not
explained
why
it
has
estimated
sulfuryl
fluoride
market
penetration
without
the
data
it
stated
was
required.

These
commenters
believe
that
EPA
has
provided
no
factual
basis
to
justify
the
15%
reduction
and
simply
selected
a
number
between
its
earlier
estimate
of
25%
penetration
of
sulfuryl
fluoride
and
the
MBTOC
estimate
of
10%
to
arrive
at
a
15%
reduction
to
account
for
sulfuryl
fluoride
use.
These
commenters
note
that
the
original
CUE
nomination
was
reviewed
by
two
panels
of
experts
(
EPA
and
MBTOC),
and
approved
by
the
Parties
to
the
­
11­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
Protocol,
and
is
being
changed
by
EPA
in
eleventh
hour
without
sufficient
review.
The
commenters
felt
that
stakeholders
need
to
be
involved
with
the
process.

Additionally,
because
the
specific
uses
to
which
the
15%
reduction
was
applied
are
not
listed,
these
commenters
are
of
the
opinion
that
it
is
not
possible
to
comment
on
the
accuracy
of
the
estimate.
[
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0175]

-
One
commenter
believes
that
the
assumption
that
15%
of
methyl
bromide
use
will
be
replaced
by
sulfuryl
fluoride
may
not
be
viable
based
on
the
efficacy
and
economics
of
sulfuryl
fluoride
across
all
sites.
[
0162.1]

-
One
commenter
states
that
they
submitted
data
in
the
past
year
to
EPA
detailing
the
much
higher
costs
of
sulfuryl
fluoride
and
its
lower
efficiency
compared
to
methyl
bromide.
The
commenter
also
states
that
recent
tolerances
set
in
the
U.
S.
do
not
equate
to
tolerances
for
sulfuryl
fluoride
in
their
export
markets
thereby
limiting
its
use.
[
0175]

 
Based
on
the
implications
of
the
November
8th
letter
from
Deputy
Assistant
Administrator
Susan
Hazen
to
the
Pet
Food
Institute
and
the
label
restrictions
on
sulfuryl
fluoride,
ten
commenters
strongly
question
EPA's
estimate
that
there
will
be
a
15%
uptake
of
sulfuryl
fluoride
in
2006
and
request
that
EPA
restore
the
full
amount
authorized
by
the
Parties
to
the
post­
harvest
uses.
The
commenters
also
note
that
there
is
no
indication
in
the
proposed
rule
that
EPA
even
considered
these
label
restrictions
in
reaching
its
15%
uptake
prediction.
[
5,
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0174,
0175]

-
Two
commenters
believe
that
the
label
requirement
that
all
finished
product
and
the
majority
of
the
facility's
bagged
ingredients
must
be
removed
from
the
premises
would
substantially
increase
a
facility's
downtime
and
possibly
permit
pests
to
find
refuge
in
untreated
products.
Additionally,
the
commenters
state
that
the
cost
of
removing
large
amounts
of
material
from
the
facility,
additional
lost
work
time,
and
supplement
treatments
is
prohibitive,
and
that
there
is
not
often
an
obvious
place
to
store
the
material
being
removed
from
the
facility.
According
to
the
commenters,
methyl
bromide
standard
operating
procedures
do
not
require
the
removal
of
food
items
from
the
premises.
[
0174,
0160.1]

 
One
commenter
believes
that
a
letter
from
EPA
to
the
Pet
Food
Institute
(
dated
November
8,
2005)
conflicts
with
the
most
current
EPA­
approved
label
language
and
EPA
risk
assessment
published
in
the
Federal
Register.
The
commenter
thinks
it
is
necessary
to
clarify
that
the
letter
is
relevant
only
to
fumigation
circumstances
that
involve
processed
foods
for
which
no
specific
tolerance
has
been
established
to
support
the
use
of
ProFume
and
that
it
does
not
apply
to
grain
milling
or
stored
commodity
fumigation
scenarios,
which
are
use
patterns
fully
supported
with
commodity­
specific
tolerances.

This
commenter
is
of
the
opinion
that
the
conditions
of
use
and
use
directions
for
EPAapproved
ProFume
address
and
mollify
the
two
concerns
provided
by
stakeholders
for
why
they
cannot
use
ProFume:
1)
processed
foods
for
which
there
is
not
a
commodity­
specific
tolerance
cannot
be
fumigated
with
ProFume;
and
2)
facility
operators
cannot
empty
their
structures
prior
to
space
fumigations.
This
commenter
states
that
while
processed
foods
not
­
12­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
supported
with
commodity
specific
tolerances
cannot
be
"
directly"
fumigated
with
ProFume,
the
label
does
permit
the
"
incidental"
fumigation
of
any
processed
food,
including
pet
food,
that
is
impractical
to
remove
prior
to
fumigation
of
a
facility.
The
ProFume
label
states:

Special
care
should
be
taken
to
minimize
quantities
of
processed
foods
prior
to
space
fumigations.
Processed
food
not
practical
to
remove
prior
to
fumigation
may
undergo
incidental
fumigation
with
ProFume.
However,
no
direct
fumigation
of
processed
foods
is
permitted
unless
the
processed
food
is
specifically
listed
in
the
section
"
Commodities
That
Can
Be
Fumigated."

EPA
has
also
established
the
appropriate
processed
food
tolerances
(
40
CFR
Part
180.145
and
Part
180.575).
This
commenter
believes
that
because
the
incidental
fumigation
of
up
to
one
day's
production
volume
of
food
(
assumed
to
remain
in
the
food
processing
facility
during
fumigation)
is
factored
into
the
EPA
risk
assessment
(
Federal
Register,
July
15,
2005
pg.
40902),
the
stakeholders
that
cite
the
impracticality
of
removing
all
processed
food
from
the
facilities
prior
to
fumigation
have
no
basis
for
their
alleged
inability
to
use
ProFume.

Considering
the
commercial
transition
from
methyl
bromide
to
ProFume
that
has
already
taken
place,
as
well
as
the
letter's
relevance
to
only
pet
food,
food
processing,
and
bakeries,
which
represent
the
minority
of
post­
harvest
methyl
bromide
uses,
this
commenter
believes
the
letter
from
EPA
to
the
Pet
Food
Institute
does
not
interfere
with
EPA's
plan
to
reduce
post­
harvest
allocation
of
methyl
bromide
by
a
minimum
of
15%
in
2006.
[
0177]

 
One
commenter
believes
that
EPA
should
verify
its
15%
uptake
assumption
with
actual
use
before
restricting
critical
use
methyl
bromide.
This
commenter
also
believes
that
if
sulfuryl
fluoride
is
actually
a
viable
alternative,
EPA
should
guide
the
transition
consistent
with
the
ability
of
all
industries
to
complete
a
transition
to
its
use.
[
1]

 
One
commenter
provided
several
testimonials
from
companies
that
support
the
use
of
ProFume
as
an
alternative
to
methyl
bromide.
[
6]
The
following
testimonials
were
included:

-
Fume
tech,
Inc.:
The
commenter
states
that
ProFume
is
effective
and
is
used
by
one
of
the
largest
US
rice
processors.
The
commenter
also
believes
that
ProFume
can
be
cost
effective,
even
though
costs
associated
with
materials
and
labor
are
higher.
This
is
because
a
mill
treated
with
ProFume
can
be
aerated
more
quickly
after
application
than
a
mill
treated
with
methyl
bromide,
resulting
in
less
facility
downtime.
The
commenter
also
believes
that
the
Fumiguide
calculator
helps
track
the
progress
of
fumigations,
making
them
more
precise.

-
Gold
River
Mills:
The
commenter
provide
testimonial
that
ProFume
is
equal
to
or
better
than
methyl
bromide
at
fumigating
his
mill
for
Red
Flour
Weevils
and
Rice
Weevils.
The
commenter
finds
the
cost
of
ProFume
slightly
higher
than
methyl
bromide,
but
believes
that
ProFume
can
be
a
competitive
alternative
to
methyl
bromide.
­
13­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
-
Stafford
County
Flour
Mills
Co.:
The
commenter
provides
testimonial
that
ProFume
is
a
very
good
alternative
to
methyl
bromide
and
is
more
effective
in
the
case
of
concrete
bulk
flour
storage
bins.

-
Fumigation
Service
&
Supply:
The
commenter
has
used
ProFume
in
over
100
post
harvest
fumigations
and
believes
ProFume
is
a
product
that
will
provide
the
post
harvest
market
sector
with
efficacious
and
cost
effective
treatment.
Additionally,
the
commenter
believes
that
the
initial
higher
costs
associated
with
ProFume
can
reduced
by
better
management
of
fumigations.
The
commenter
provides
an
attachment
of
the
real
time
commercial
costs
of
and
effects
of
ProFume.

-
Research
Fumigation
Company,
LLC:
The
commenter's
experience
with
ProFume
has
been
very
positive.
The
commenter
believes
that
ProFume
helps
to
improve
their
industry
by
requiring
proper
oversight
and
better
fumigation
management,
and
increasing
safety
and
exposure
issues
by
requiring
the
introduction
of
the
fumigant
from
outside
of
the
treated
structure.

-
Stored
Food,
Commodity,
Fumigation:
The
commenter
cites
several
benefits
of
ProFume
including
it
is
a
non­
ODS,
is
non­
corrosive
to
metals
and
electrical
equipment,
is
an
excellent
penetrator
that
desorbs
rapidly,
aerates
easily
and
rapidly,
is
effective
on
all
insect
life
stages,
and
is
non­
flammable
and
odorless.

 
One
commenter
provides
published
research
that
supports
the
15%
methyl
bromide
reduction.
The
paper
is
entitled,
"
Monitoring
the
Red
Flour
Beetle,
Tribolium
Castaneum
and
other
Stored­
Product
Insects
with
Traps
in
Flour
Mills."
[
7]

 
One
commenter
expresses
concern
that
ProFume
is
being
promoted
by
EPA
as
a
methyl
bromide
alternative
in
post­
harvest
applications
because
this
commenter
believes
that
there
is
strong
evidence
that
ProFume
causes
cancer
in
children
and
that
the
level
of
fluoride
in
the
U.
S.
population's
diet
is
dangerously
high.
[
0176]

 
One
commenter
agrees
with
EPA's
proposal
to
reduce
the
volume
of
methyl
bromide
allocated
for
post­
harvest
use
in
the
2006
control
period,
but
does
not
think
that
the
proposed
15
%
reduction
reflects
the
degree
of
transition
that
has
already
taken
place.
The
commenter
believes
that
the
post­
harvest
methyl
bromide
use
sector
is
positioned
to
make
a
rapid,
aggressive
transition
to
alternatives.
The
commenter
notes
that
ProFume
is
registered
in
49
of
50
states
and
for
each
of
the
2006
post­
harvest
critical
uses
and
summarizes
the
details
of
the
federal
and
state
registration
status
of
sulfuryl
fluoride.

The
commenter
also
provides
a
correction
to
the
statement
in
the
proposed
rule
that
"
there
have
been
18
months
of
trials
and
potential
adoption
by
similar
facilities
since
the
first
sulfuryl
fluoride
registration
action."
The
commenter
states
that
commercial­
scale
trials
of
ProFume
have
been
underway
in
the
U.
S.
since
1998.
[
0157.1]

 
Two
commenters
believe
that
the
transition
timetable
of
15%
penetration
in
2006
proposed
by
EPA
does
not
reflect
the
rate
that
should
be
required
for
methyl
bromide,
the
use
of
which
has
been
banned
in
the
U.
S.
Given
these
circumstances,
the
commenters
believe
that
the
phaseout
­
14­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
rate
should
be
quickened
by
the
U.
S.
government
to
maintain
compliance
with
the
Clean
Air
Act
and
the
Montreal
Protocol.
One
commenter
states
that
the
pace
of
the
phaseout
of
methyl
bromide
should
not
be
left
wholly
up
to
the
market
to
determine,
and
notes
that
more
than
15%
of
the
grain
milling
market
has
already
demonstrated
success
with
ProFume.
Another
commenter
believes
that
the
market
penetration
of
sulfuryl
fluoride
will
be
inhibited
rather
than
accelerated
as
long
as
EPA
allows
methyl
bromide
to
remain
available
for
uses
that
the
new
chemical
could
address.
[
0157.1,
0173]

 
One
commenter
provided
several
attachments
on
the
technical
viability
of
ProFume
as
an
alternative
for
post­
harvest
uses,
including
the
following
information:
[
0155,
0155.1,
0155.2,
0155.3,
0155.4,
0155.6,
0155.7,
0155.8,
0155­
A]

-
A
study
that
indicates
that
methyl
bromide
and
sulfuryl
fluoride
provided
adequate
levels
of
insect
suppression
and
satisfied
the
customer
(
miller)
need
[
0155.2].

-
A
study
in
a
wheat
flour
mill
where
flour
beetle
counts
were
collected
every
month
using
70
traps
from
2001­
2005
that
found
that
population
rebound
rates
for
ProFume
and
methyl
bromide
were
similar
[
0155.3].

-
A
study
that
found
that
ProFume
was
effective
against
infestations
of
the
confused
flour
beetle
and
the
Mediterranean
flour
beetle,
when
compared
with
methyl
bromide.
[
0155.4]

-
The
results
of
a
bioassay
conducted
by
Purdue
University
that
examined
the
efficacy
of
ProFume
on
eggs,
larvae,
pupae,
and
adults
(
100%
control
of
all
life
stage).
[
0155­
A]

-
A
presentation
of
a
study
conducted
at
Kansas
State
University
that
indicates
ProFume
fumigations
were
successful
and
did
not
disrupt
customers'
operations
or
downtime
[
0155.6].

-
A
presentation
of
a
study
that
found
that
fumigators
and
millers
were
satisfied
with
the
efficacy
and
performance
of
ProFume
when
compared
to
methyl
bromide
[
0155.7].

-
Information
on
some
of
the
commercial
fumigation
conducted
in
2005
and
the
customer
feedback
used
for
a
previous
study.
The
document
includes
fumigations
in
different
locations,
seasons,
temperature
conditions,
variable
half
loss
time,
resulting
insect
control
ratings
[
0155.8].

2.
d.
Barriers
to
Adopting
Other
Alternatives
Commenter
Organization
Document
ID
Number
Dow
Dow
AgroSciences
0157.1
Dennis
Balint
CA
Walnut
Commission
0159.1
Mark
Reddick
Reddick
Fumigants
0160.1
Kirk
Hunter
Turfgrass
Producers
International
0168.1
Dan
Legard
CA
Strawberry
Commission
0171
James
Wells
Environmental
Solutions
Group,
LLC
0172
Steve
Hensley
USA
Rice
0175
Steven
Hamilton
The
Urban
Environmental
Affairs
Council
0176
 
One
commenter
believes
that
there
are
several
barriers
to
the
complete
phase
out
of
methyl
bromide.
The
commenter
states
that
these
include:
a
California
mandated
cap
on
the
amount
of
1,3­
Dichloropropene
that
can
be
used
in
townships;
concerns
about
the
long­
term
­
15­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
effectiveness
of
alternatives;
and
issues
related
to
the
transition
from
broadcast
fumigation
with
methyl
bromide
to
bed
fumigation
with
alternatives.
[
0171]

Response:
EPA
understands
that
there
are
barriers
concerning
the
adoption
of
alternatives
to
methyl
bromide.
EPA
accounted
for
these
issues,
such
as
regulatory
barriers,
when
developing
the
nomination
and
continues
to
monitor
the
status
of
alternatives
research.

 
One
commenter
believes
that
alternatives
can
only
be
effective
under
a
narrow
range
of
climate
and
structure
conditions,
whereas
the
use
of
methyl
bromide
is
effective
in
a
wide
range
of
conditions.
[
0175]

Response:
EPA
understands
that
there
are
barriers
concerning
the
adoption
of
alternatives
to
methyl
bromide.
In
the
Nomination,
EPA
requests
methyl
bromide
for
the
acreage
where
alternatives
do
not
control
pest
pressure
adequately.

 
One
commenter
believes
that
there
is
a
lack
of
alternatives
for
pre­
plant
uses.
[
0159.1]

Response:
EPA
notes
that
there
are
several
alternatives
registered
for
various
pre­
plant
uses
and
is
currently
evaluating
all
soil
fumigants
together.
EPA
encourages
users
to
conduct
additional
research
or
explore
additional
production
methods
where
possible.

 
One
commenter
is
concerned
that
EPA
is
promoting
various
chemical
alternatives
to
methyl
bromide,
which
are
widely
known
to
have
severe
negative
health
and
environmental
impacts.
The
commenter
feels
that
EPA
is
disregarding
its
mandate
to
protect
the
environment
by
rushing
the
phaseout
of
methyl
bromide.
The
commenter
believes
that
1,3­
Dichloropropene
is
a
known
carcinogen
that
can
contaminate
Florida
groundwater
and
that
methyl
iodine
is
a
known
mutagen
whose
effects
on
the
environment
have
not
been
widely
researched.
The
commenter
provides
several
articles
on
1,3­
Dichloropropene,
Midas
(
methyl
iodide),
ProFume
(
sulfuryl
fluoride),
and
fluoride.
[
0176]

Response:
See
p.
42
of
the
Preamble.

 
One
commenter
believes
that
the
transition
to
alternatives
has
been
restricted
by
the
limitations
of
alternatives,
including:
(
1)
Chloropicrin
lacks
weed
and
nematode
control
and
may
have
future
registration
issues;
(
2)
Telone
has
a
21
day
plant
back,
no
weed
control,
is
a
potential
carcinogen,
and
has
groundwater
and
application
issues;
(
3)
Methyl
iodide
is
not
currently
registered;
(
4)
VIF
mulch
film
is
not
user
friendly
or
commercially
viable;
(
5)
Phosphine
is
corrosive
to
equipment
and
requires
a
longer
fumigation
period;
(
6)
Sulfuryl
fluoride
does
not
allow
for
fumigation
of
processed
food
or
pet
food.
[
0160.1]

Response:
EPA
accounts
for
all
of
these
points
in
the
Nomination
and
requests
critical
use
methyl
bromide
for
those
areas
where
pests
are
not
adequately
controlled
with
alternative
fumigants.
­
16­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
 
One
commenter
points
out
a
2000
study
by
the
National
Center
for
Food
and
Agricultural
Policy
that
identified
sod
as
one
of
the
most
valuable
uses
of
methyl
bromide
to
justify
methyl
bromide
use
by
this
sector.
[
0168.1]
This
commenter
claims
that
alternatives,
including
the
only
alternative
EPA
has
listed
for
turfgrass
sod,
Basamid,
provide
inferior
weed
control.
The
most
promising
alternative,
methyl
iodide,
is
not
registered
for
use
in
the
U.
S.
This
commenter
estimates
that
transitioning
away
from
methyl
bromide
will
cost
a
representative
grower
a
$
5,957/
acre
loss
in
revenue
per
fumigation
cycle
due
to
inferior
product
and
a
lower
proportion
of
harvestable
acreage
and
incur
increased
costs
of
$
2,100/
acre,
which
will
make
sod
production
unprofitable
and
cost
the
sod
industry
as
a
whole
$
21
million
in
revenues
and
incur
$
7.4
million
in
increased
production
costs.
[
0168.1]

Response:
EPA
recognizes
that
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
this
rule
to
allow
for
exempted
production
to
meet
the
needs
of
users
who
do
not
have
technical
and
economic
alternatives
available
to
them.

 
One
commenter
states
that
supplies
of
1,3­
Dichloropropene
are
available
for
more
rapid
uptake.
[
0157.1]

Response:
EPA
notes
that
1,3­
D
is
effective
under
various
circumstances
and
has
prepared
the
annual
Nominations
accordingly.

 
One
commenter
notes
that
California
rose
nursery
production
is
restricted
by
annual
caps
on
permitted
use
of
1,3­
Dichloropropene
and
expresses
concerned
about
its
long­
term
effectiveness
in
producing
disease
free
nursery
stock.
[
0172]

Response:
EPA
has
accounted
for
Telone
township
caps
in
preparing
the
Nomination,
and
recognizes
the
requirement
that
nursery
stock
be
pest­
free,
as
described
in
the
California
Nursery
Stock
regulations.
EPA
understands
that
county
agricultural
officials
may
certify
a
crop
based
on
completion
of
a
prescribed
fumigation
regime
and
that
growers
need
to
achieve
nematode
control
to
a
depth
of
1.5
meters
to
meet
regulation
requirements.

2.
e.
Post­
hoc
Review
Commenter
Organization
Document
ID
Number
Bruce
Houtman
Dow
AgroSciences
8
Dow
Dow
AgroSciences
0157.1
Justin
Brown
Golden
State
Bulb
Growers
0163.1
 
One
commenter
states
concern
over
the
lengthy
3­
year
CUE
allocation
process,
during
which
time
many
technical
and
regulatory
changes
may
change
the
capacity
of
methyl
bromide
alternatives.
This
commenter
is
encouraged
by
the
provision
to
the
proposed
rule
that
provides
a
mechanism
for
post­
hoc
review
of
"
new
information"
so
the
continued
legitimacy
of
methyl
bromide
CUE
allocation
and
corresponding
volumes
can
be
determined
and
the
phaseout
rate
can
be
enhanced.
­
17­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
This
commenter
requests
that
EPA
conduct
a
post­
hoc
evaluation
of
the
methyl
bromide
critical
use
allocation
needs
for
pre­
plant
similar
to
what
is
proposed
to
post­
harvest
uses.
This
commenter
believes
that
alternatives
are
now
available
and
better
known
to
the
user
community
so
that
a
more
rapid
uptake
away
from
methyl
bromide
could
take
place
in
2006.
The
commenter
provides
new
information
and
data
for
1,3­
D
soil
fumigants
to
assess
EPA
in
these
assessments.

This
commenter
also
points
out
the
significant
adoption
of
alternatives
that
has
taken
place
in
a
number
of
markets
including
the
residential­
structural
market
and
the
California
strawberry
market
since
the
inclusion
of
methyl
bromide
in
the
Montreal
Protocol.
This
commenter
believes
that
a
further
transition
away
from
methyl
bromide
in
pre­
plant
uses
is
achievable
in
the
next
few
years.
[
0157.1]

 
One
commenter
provided
several
attachments
regarding
new
technical
information
on
the
performance
and
capabilities
of
methyl
bromide
alternatives
that
might
not
have
been
available
when
the
2006
U.
S.
critical
use
nomination
was
approved
to
allow
a
post­
hoc
evaluation.
[
8]

 
One
commenter
suggests
that
EPA
wait
until
all
information
about
methyl
bromide
use
and
inventories
is
available
in
early
2006
before
deciding
to
reduce
methyl
bromide
use
beyond
the
30%
of
1991
baseline
recommended
by
MBTOC.
[
0163.1]

Response:
EPA
addressed
the
above
comments
in
the
Preamble.

3.
Summary
of
Comments
Relating
to
the
SOURCES
OF
CRITICAL
USE
METHYL
BROMIDE
3.
a.
Proportion
of
Critical
Use
Methyl
Bromide
from
Pre­
Phaseout
Inventories
and
from
New
Production/
Import
Commenter
Organization
Document
ID
Number
William
Murray
American
Forest
&
Paper
Association
1
Miriam
Borja
Western
Industries
5
E.
Barclay
Poling
SE
Strawberry
Consortium
9
Miguel
Cea
Ag­
Fume
Services
0156
Dow
Dow
AgroSciences
0157.1
Susan
Lewis
Methyl
Bromide
Industry
Panel
of
the
American
Chemistry
Council
0158.1,
0161.1
Dennis
Balint
CA
Walnut
Commission
0159.1
Mark
Reddick
Reddick
Fumigants
0160.1
Henry
Giclas
Western
Growers
0162.1
Victor
Lilley
Berry
Tyme
Farms
0166
Kirk
Hunter
Turfgrass
Producers
International
0168.1
Stephen
Payne
The
Pet
Food
Institute
0170
Dan
Legard
CA
Strawberry
Commission
0171
James
W.
Wells
Environmental
Solutions
Group
LLC
0172
David
Doniger
Natural
Resources
Defense
Council
0173,
0173.1,
0173.2,
0173.4
Steve
Hensley
USA
Rice
0175
­
18­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
 
Fourteen
commenters
express
concern
with
the
provision
in
the
proposed
rule
that
allows
27%
of
critical
use
methyl
bromide
to
come
from
new
production,
whereas
Decisions
XVI/
2
and
Ex.
II/
1
of
the
Parties
to
the
Montreal
Protocol
allow
for
30%,
and
increases
the
amount
of
methyl
bromide
to
come
from
stocks
from
2%
to
5%.
[
1,
5,
9,
0156,
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0171,
0172,
0175]

-
Eight
commenters
believe
that
the
full
amount
of
new
production
and
consumption
should
be
allocated
for
2006.
These
commenters
find
EPA's
proposal
inconsistent
with
the
terms
of
the
relevant
Decisions
of
the
Parties;
they
find
nothing
in
Decision
XVI/
2
and
Ex.
II/
1
to
suggest
that
the
amount
authorized
for
new
production/
imports
by
the
Parties
to
the
Montreal
Protocol
(
7,658
MT)
should
be
adjusted
downward.
The
commenters
believe
that
the
requirement
for
a
"
renewed
commitment"
under
Decision
Ex.
II/
1
suggests
a
continuation
of
the
commitment
already
made,
not
a
new
commitment
to
reduce
levels
of
production
and
consumption.
The
commenters
note
that
if
the
Parties
wanted
EPA
to
require
a
greater
amount
of
material
to
come
from
stocks,
they
could
have
used
different
language,
but
they
did
not.
The
commenters
also
object
to
the
regulation
of
pre­
phaseout
stocks
of
methyl
bromide
under
the
critical
use
program
in
general,
and
reference
their
earlier
comments
on
the
2005
rulemaking.

These
commenters
also
believe
that
by
requiring
more
critical
use
needs
to
be
met
from
stocks,
EPA
is
perpetuating
the
problem
of
market
uncertainties
related
to
the
available
level
of
stocks.
Additionally,
these
commenters
note
that
by
approving
the
7,658
MTlevel
of
production
and
consumption
for
2006,
the
Parties
have
implicitly
accepted
the
environmental
effects
associated
with
the
use
and
release
of
that
material.
The
commenters
also
believe
that
by
reducing
the
amount
of
new
production
and
imports
for
critical
uses,
EPA
deprives
non­
critical
users
of
supplies
of
methyl
bromide
that
should
be
available
to
them.
Furthermore,
the
commenters
believe
that
it
is
important
to
preserve
existing
stocks
to
provide
a
"
safety
valve"
in
the
event
of
a
catastrophic
constraint
on
supplies
or
an
unexpected
pest
outbreak,
and
that
EPA's
proposed
rule
may
perpetuate
a
situation
in
which
there
are
insufficient
stocks
to
address
such
a
catastrophe.
[
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0175]

-
Nine
commenters
believe
that
EPA
has
no
basis
to
assume
that
critical
users
have
had
no
difficulty
obtaining
methyl
bromide
from
stocks
in
2005
because
most
users
would
only
be
experiencing
difficulty
now
 
in
the
end
of
the
year
after
the
proposed
rule
was
issued.
[
9,
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0175]

o
Two
commenters
noted
that
stocks
are
not
uniformly
distributed,
either
geographically
or
among
commercial
entities,
and
that
at
many
distributor
locations,
stocks
have
already
been
depleted.
These
two
commenters
believe
there
are
no
stocks
available,
even
if
CSAs
are
issued,
and
that
this
constitutes
a
market
disruption.
[
0162.1,
0168.1]

o
One
commenter
states
that
they
did
not
have
enough
CUE
pounds
of
methyl
bromide
to
supply
their
customers,
so
that
users
had
to
access
existing
­
19­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
inventory
purchased
at
the
end
of
2004
and
in
2005.
The
commenter
believes
that
additional
shortage
is
caused
by
the
2005
Supplementals.
[
0160.1]

o
Ten
commenters
also
believe
that
EPA
has
no
basis
for
this
assumption
because
actual
data
on
the
2005
control
period
is
not
yet
available.
[
9,
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0172,
0175]

o
Eight
commenters
believe
that
no
downward
adjustment
should
be
made
until
EPA
has
fully
evaluated
the
actual
data
for
2005.
According
to
these
commenters,
EPA
offers
no
factually­
grounded
basis
for
shifting
the
amount
of
methyl
bromide
to
be
obtained
from
new
production/
imports
versus
stocks.
The
commenters
point
out
that
it
is
well­
established
that
EPA
must
have
a
rational
basis
for
its
decisions
and
that
its
conclusions
must
be
supported
by
substantive
evidence,
and
cite
legal
cases
to
support
that
point.
[
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0175].

-
Two
commenters
express
concern
that
there
may
be
errors
in
the
amount
of
methyl
bromide
that
was
estimated
to
be
needed
in
each
sector
due
to
uncertainty
in
the
critical
use
exemption
and
allocation
process.
Therefore,
the
commenters
believe
that
the
shifting
of
the
source
of
3%
from
new
production/
imports
to
pre­
phaseout
stocks
may
result
in
insufficient
supplies.
[
0171,
0172].
One
commenter
also
believes
that
the
increased
depletion
of
pre­
phaseout
stocks
of
methyl
bromide
will
likely
increase
the
cost
of
the
material.
[
0171]

-
Five
commenters
believe
that
the
accelerated
use
of
stocks
could
result
in
possible
concentration
of
stocks
in
the
hands
of
a
few
large
entities,
which
could
further
lead
to
localized
market
shortages.
[
0156,
0159.1,
0160.1,
0162.1,
0168.1]
One
commenter
also
noted
that
this
could
mean
a
time
lag
in
delivery
of
methyl
bromide
and
loss
of
potential
business
to
the
industry.
[
0159.1]

-
Three
commenters
believe
that
the
accelerated
use
of
stocks
will
result
in
the
loss
of
the
safety
net
that
was
supposed
to
be
provided
by
the
CSAs.
[
0160.1,
0162.1,
0168.1]

-
One
commenter
believes
that
it
is
not
clear
how
increasing
stocks
to
the
5%
level
from
the
required
2%
will
yield
an
environmental
benefit,
and
that
it
does
not
make
sense
to
increase
the
level
of
stocks
if
it
means
instituting
a
new
petition
process.
This
commenter
also
believes
that
it
is
unwise
for
EPA
to
drive
up
the
cost
of
methyl
bromide
to
encourage
the
transition
to
alternatives
when
research
and
development
is
not
complete
and
the
reregistration
status
of
the
fumigants
is
unresolved.
[
1]

 
One
commenter
notes
that
information
generated
for
the
2005
control
period,
such
as
data
from
recordkeeping
and
reporting
requirements
associated
with
CSAs
and
CUAs
and
the
Section
114
information
request
on
existing
and
available
stocks,
can
and
should
be
used
to
more
precisely
specify
the
balance
between
CUAs
and
CSAs
in
order
to
ensure
that
existing
­
20­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
stocks
(
CSAs)
are
utilized
before
the
use
of
CUAs.
This
commenter
also
believes
that
no
CUAs
should
be
planned
if
adequate
CSAs
are
available
to
satisfy
the
methyl
bromide
critical
exemption
needs
for
2006
and
that
any
under­
prediction
of
available
stocks
should
be
corrected
by
the
exchange
of
CUAs
for
CSAs.
Specifically,
the
commenter
requests
the
proposed
rule
state
that
the
retirement
of
CUAs
in
exchange
for
CSAs
shall
be
required,
in
accordance
with
Decision
IX/
6
and
the
objectives
of
the
Montreal
Protocol
and
Clean
Air
Act.
[
0157.1]

 
One
commenter
asserts
that
the
proposed
rule
does
not
comply
with
the
requirements
of
Decision
XVI/
2,
¶
4
and
Ex.
II/
1,
¶
5
to
comply
with
Decision
IX/
6
and
to
account
for
stocks.
The
commenter
notes
that
these
Decisions
set
an
upper
limit
on
production
and
consumption
of
30%
of
the
U.
S.
1991
baseline,
or
7,658,265
kg,
and
that
EPA
has
proposed
to
reduce
this
amount
to
27%
of
the
U.
S.
1991
baseline
and
maintain
the
same
draw
on
stocks
as
was
done
in
2005
(
5%
of
baseline).
The
commenter
believes
that
EPA
failed
to
comply
with
¶
5
of
Decision
Ex.
I/
3,
which
requires
that
stocks
be
accounted
for
and
new
production
and
consumption
only
be
permitted
if
methyl
bromide
is
not
sufficiently
available
in
existing
stocks.
The
commenter
asserts
that,
in
the
2005
rulemaking,
EPA
undertook
no
assessment
of
how
much
critical
use
need
could
be
met
with
stocks
and
refused
to
disclose
the
total
amount
held
by
the
29
companies
identified
as
holding
stocks.
According
to
a
letter
from
Dona
DeLeon,
Acting
Associate
Administrator
of
EPA,
dated
February
10,
2004,
five
of
these
companies
held
at
least
10,000,000
kg,
or
more
than
40%
of
the
U.
S.
baseline.
[
0173.2]
In
order
to
comply
with
Decisions
Ex.
I/
3
and
IX/
6
and
with
Section
604(
d)(
6),
the
commenter
argues
that
EPA
was
required
to
reduce
production
and
import
well
below
the
30%
upper
limit
to
account
for
these
stocks,
but
that
the
agency
did
not
make
this
reduction.
Thus,
the
commenter
believes
that
EPA
cannot
rely
in
the
2006
rule
on
its
assessment
of
stocks
in
the
2005
because
the
2005
rule
did
not
comply
with
the
CAA
or
the
Protocol.
The
commenter
also
submitted
the
formal
request
for
usage
data
for
2004.
[
0173.4]

The
commenter
states
that
in
the
2006
rule,
EPA
has
acknowledged
that
the
30%
production/
import
level
is
an
upper
limit,
subject
to
reduction
to
account
for
stocks,
but
has
only
repeated
the
5%
draw
on
stocks
from
the
2005
rule
that
does
not
account
for
the
quantities
held
in
stocks.
The
commenter
believes
that
this
position
does
not
comply
with
the
Parties
recent
unanimous
decision
to
change
the
language
of
¶
5
of
Decision
Ex.
I/
3
from
"
should
ensure"
to
"
renews
its
commitment
to
ensure"
to
reject
the
U.
S.
position
that
the
previous
language
was
merely
"
hortatory."
The
commenter
asserts
that
this
new
language
is
completely
binding.
According
to
the
commenter,
while
EPA
noted
the
change
in
wording,
the
agency
called
the
new
language
"
similar"
to
the
earlier
language
and
announced
that
it
will
make
"
no
significant
changes"
to
the
erroneous
interpretation
in
the
2005
rule
(
70
Fed.
Reg.
at
62,042/
2),
thereby
disregarding
the
U.
S.
commitment
under
Decision
Ex.
II/
1
and
EPA's
obligations
under
Section
604(
d)(
6).

This
commenter
requests
that
EPA
disclose
the
amount
of
stocks
held
by
private
sector
entities
because
this
information
is
relevant
to
the
outcome
of
the
rule
and
should
therefore
be
available
for
public
comment
under
Section
307(
d)
of
the
Clean
Air
Act.
The
commenter
specifically
refers
to
legal
arguments
made
in
support
of
this
point
in
prior
comments
and
legal
briefs.
This
commenter
has
received
information
suggesting
that
some
or
all
of
the
29
­
21­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
stock
holders
may
be
attempting
to
evade
EPA's
current
reporting
procedures
for
stocks
by
transferring
the
legal
title
of
previously
reported
stocks
to
other
entities
that
will
presumably
use
those
stocks.
In
some
cases,
stocks
may
be
relocated
to
the
premises
of
such
downstream
users
and
in
other
instances
legal
ownership
may
have
shifted
while
stocks
remained
physically
in
the
same
hands.
According
to
the
commenter,
through
these
transactions,
currently
identified
stock
holders
may
be
hoping
to
avoid
reporting
those
stocks
in
the
future
and
giving
the
impression
that
they
no
longer
exist.
The
commenter
asserts
that
stocks
are
not
exempt
from
coverage
of
Decision
IX/
6
and
should
still
be
accounted
for
even
if
they
are
held
by
the
ultimate
user
and
need
no
further
sale.
Thus,
this
commenter
requests
EPA
to
broaden
its
Section
114
information
gathering
to
make
sure
it
accounts
for
all
stocks
and
defeats
any
subterfuge
of
shifting
ownership.
EPA
then
needs
to
account
for
all
such
stocks
in
determining
allowable
levels
of
new
production/
import.
[
0173]
The
commenter
provided
their
comments
on
the
proposed
2005
exemptions
and
2005
supplementary
exemptions
[
0173]
and
NRDC
v.
EPA,
No.
04­
1438
(
D.
C.
Cir.,
argued
Oct.
17,
2005).
[
0173.1]

Response:
EPA
addressed
the
above
comments
in
the
Preamble.

3.
b.
Petition
Process
and
Requirements
for
Allowing
Critical
Stock
Allowances
to
be
Exchanged
for
Critical
Use
Allowances
Commenter
Organization
Document
ID
Number
Miriam
Borja
Western
Industries
5
Dow
Dow
AgroSciences
0157.1
Susan
Lewis
Methyl
Bromide
Industry
Panel
of
the
American
Chemistry
Council
0158.1,
0161.1
Dennis
Balint
CA
Walnut
Commission
0159.1
Mark
Reddick
Reddick
Fumigants
0160.1
Henry
Giclas
Western
Growers
0162.1
Victor
Lilley
Berry
Tyme
Farms
0166
Kirk
Hunter
Turfgrass
Producers
International
0168.1
Stephen
E.
Payne
Pet
Food
Institute
0170
Dan
Legard
CA
Strawberry
Commission
0171
James
W.
Wells
Environmental
Solutions
Group
LLC
0172
David
Doniger
Natural
Resources
Defense
Council
0173
Steve
Hensley
USA
Rice
0175
 
Eleven
commenters
are
concerned
that
the
petition
process
would
be
unable
to
meet
the
needs
of
critical
users
of
methyl
bromide
and
that
EPA
is
not
capable
of
reviewing
and
responding
the
petitions
quickly
enough
to
address
the
real
time
needs
of
the
industry.
[
5,
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0171,
0172,
0175]

-
Nine
commenters
are
concerned
that
the
petition
process
is
too
complex
[
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0175,
0172].
Eight
commenters
feel
that
the
process
is
too
complex
because
users
must
identify
and
coordinate
between
a
distributor
that
holds
CSAs
without
a
corresponding
quantity
of
pre­
phaseout
methyl
bromide
and
a
producer/
importer.
[
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0175]
­
22­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
-
One
commenter
believes
methyl
bromide
manufacturers
could
not
make
additional
deliveries
in
the
narrow
period
of
time
in
which
fumigation
is
required
in
California
strawberry
fruit
production.
[
0171]

-
Nine
commenters
believe
that
the
petition
process
places
an
unreasonable
burden
on
users.
[
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0172,
0175]
Eight
commenters
state
that
this
is
because
the
process
requires
users
to
identify
and
get
cooperation
from
a
producer/
importer
to
complete
the
exchange
and
also
to
obtain
documentation
from
both
the
distributor
and
producer.
[
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0175]

-
Eight
commenters
believe
that
the
only
reason
that
the
petition
process
is
needed
is
because
EPA
has
proposed
to
allocate
a
lower
quantity
of
methyl
bromide
from
new
production/
imports
than
the
quantity
that
was
authorized
by
the
Parties.
The
commenters
urge
EPA
to
allocate
the
full
amount
of
new
production/
imports
authorized
and
eliminate
the
petition
procedure.

These
commenters
believe
the
review
period
(
30
working
days)
proposed
by
EPA
is
too
long.
Since
exchanges
cannot
occur
during
a
petition
review,
it
may
be
too
late
for
a
user
to
effectively
treat
the
application
that
was
granted
a
critical
use
exemption.
The
commenters
believe
that
the
review
period
should
be
significantly
shortened
and
that
the
procedure
should
include
a
mechanism
by
which
petitions
are
automatically
granted
if
EPA
fails
to
make
a
decision
by
the
review
deadline.

These
commenters
are
also
concerned
that
the
petition
process
has
no
deadline
for
EPA
to
inform
a
petitioner
as
to
whether
his/
her
petition
is
actually
complete.
The
commenters
feel
that
the
procedure
should
require
EPA
to
make
a
determination
of
completeness
within
7
working
days
of
its
receipt
of
a
petition.

These
commenters
also
find
the
rule
unclear
as
to
how
EPA
will
be
able
to
determine
whether
the
amount
of
methyl
bromide
needed
under
a
petition
can
be
supplied
from
stocks
or
new
material
held
by
other
distributors.
These
commenters
are
concerned
that
supplies
of
methyl
bromide
cannot
be
easily
shifted
to
meet
user
needs
regardless
of
geographic
location.
These
commenters
are
concerned
that
if
local
distributors
and
applicators
are
unable
to
meet
the
needs
of
users,
distributors
and
applicators
from
outside
the
area
may
be
unwilling
to
provide
their
services.
This
unwillingness
may
be
because
the
costs
of
shipping
methyl
bromide
to
the
user's
location
may
be
too
expensive
or
it
may
not
be
feasible
to
move
equipment
to
the
location
of
the
user.
Additionally,
the
commenters
note
that
state
registration
requirement
may
prohibit
the
movement
of
registered
methyl
bromide
from
one
state
to
another
and
that
each
product
may
not
be
registered
for
all
possible
uses.
The
commenters
also
believe
that
the
petition
process
incorrectly
assumes
that
supplies
of
new
methyl
bromide
can
be
readily
obtained
once
a
petition
is
approved,
which
may
not
be
the
case
in
new
quantities
must
be
produced
or
imported.
[
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0175]

-
Eight
commenters
are
concerned
that
the
proposed
petition
process
will
not
be
available
after
October
1,
2006.
Therefore,
exchange
transaction
will
not
be
available
in
the
4th
quarter,
which
is
when
the
material
is
most
likely
needed.
[
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0175]
­
23­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
-
One
commenter
believes
that
there
are
other
methods
to
ensure
ample
stockpile
of
methyl
bromide,
and
that
no
company
plans
for
a
shortage
or
emergency
need
so
sufficient
quantities
should
be
guaranteed
throughout
the
year.
[
0170]

 
One
commenter
agrees
with
the
petitioning
mechanism
proposed
by
EPA,
but
believes
that
it
is
unlikely
that
stocks
will
become
unavailable.
[
0157.1]

 
One
commenter
objects
to
the
proposed
petition
process,
asserting
that
EPA
has
not
provided
any
justification
for
the
need
for
a
petition
process
that
could
result
in
the
expansion
of
production
and
import
back
to
the
30%
upper
limit
and
that
the
process
is
unnecessary.
In
addition,
this
commenter
feels
that
the
petition
process
is
arbitrary
because
any
possible
shortage
of
stocks
for
critical
users
could
only
result
from
EPA's
refusal
to
bar
non­
critical
users
from
accessing
methyl
bromide
stocks
and
to
bar
critical
users
from
double­
dipping
into
those
stocks.
[
0173]

Response:
EPA
addressed
the
above
comments
in
the
preamble,
and
has
withdrawn
the
Information
Collection
Request
(
ICR)
for
the
proposed
petition
process.

4.
Summary
of
Comments
Relating
to
CRITICAL
USE
ALLOWANCE
ALLOCATIONS
4.
a.
Total
Levels
of
Exempted
Production/
Import
for
Critical
Uses
Commenter
Organization
Document
ID
Number
William
Murray
American
Forest
&
Paper
Association
1
Susan
Lewis
Methyl
Bromide
Industry
Panel
of
the
American
Chemistry
Council
0158.1,
0161.1
Dennis
Balint
CA
Walnut
Commission
0159.1
Mark
Reddick
Reddick
Fumigants
0160.1
Henry
L.
Giclas
Western
Growers
0162.1
Justin
Brown
Golden
State
Bulb
Growers
0163.1
Victor
Lilley
Berry
Tyme
Farms
0166
Kirk
Hunter
Turfgrass
Producers
International
0168.1
Stephen
E.
Payne
Pet
Food
Institute
0170
Gene
Harrington
NPMA
0174
Steve
Hensley
USA
Rice
0175
 
Nine
commenters
find
EPA's
decision
to
reduce
critical
use
levels
below
what
was
approved
by
MBTOC
arbitrary
and
urge
EPA
to
revert
the
approved
CUE
amounts
back
to
those
levels
granted
by
MBTOC.
[
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0163.1,
0166,
0168.1,
0170,
0175].
Eight
commenters
find
EPA's
proposal
inconsistent
with
the
terms
of
the
relevant
Decisions
of
the
Parties;
they
find
nothing
in
Decision
XVI/
2
and
Ex.
II/
1
to
suggest
that
the
amount
authorized
for
new
production/
imports
by
the
Parties
to
the
Montreal
Protocol
(
7,658
MT)
should
be
adjusted
downward.
[
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0175]
­
24­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
 
Eight
commenters
believe
that
there
is
an
error
in
the
allocated
CUAs
set
forth
in
82.8(
c).
The
amount
attributed
to
Albemarle
and
Ameribrom
is
listed
as
"
129,934
kilograms."
The
commenters
state
that
this
may
be
a
duplication
error
and
that
the
correct
allocation
should
be
71,778
kilograms.
Additionally,
the
corresponding
total
for
post­
harvest
CUAs
should
be
519,910
kilograms.
[
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0175]

 
One
commenter
questions
how
EPA
arrived
at
the
519,910
kg
figure
in
the
2006
CUA
postharvest
table
on
p.
62044
and
p.
62049.
The
commenter
notes
that
on
p.
62040,
EPA
states
that
for
"
the
post­
harvest
sectors,
the
reduction
would
be
from
an
authorized
amount
of
707,746
kilograms
to
an
amount
of
601,584
kilograms,"
and
finds
it
unclear
how
or
why
an
additional
80,000
kg
were
cut
from
post­
harvest
uses.
[
0174]

 
One
commenter
finds
the
total
amount
of
exempted
production/
import
for
critical
uses
in
2006
appropriate,
but
believes
that
EPA
should
assure
that
only
approved
critical
users
will
have
access
to
CUE
methyl
bromide
by
perhaps
placing
responsibility
for
compliance
on
distributors
within
those
non­
critical
sectors.
[
1]

 
One
commenter
is
concerned
that
the
amount
of
new
production
allocated
for
pre­
plant
uses
in
2006
was
reduced
by
2
million
pounds
from
the
2005
allocation
despite
the
absence
of
newly
registered
soil
alternatives.
[
0162.1]

Response:
EPA
has
addressed
the
above
comments
in
the
Preamble.

4.
b.
Allocation
of
CUAs
into
Sector
Specific
Groupings
versus
Pre­
Plant
and
Post­
Harvest
Groupings
Commenter
Organization
Document
ID
Number
William
Murray
American
Forest
&
Paper
Association
1
Dow
Dow
AgroSciences
0157.1

One
commenter
supports
the
allocation
of
CUAs
to
the
same
two
groupings
(
pre­
plant
and
post­
harvest)
because
critical
users
need
as
much
clarity
as
possible
on
what
to
expect
and
as
much
consistency
from
year
to
year
as
possible.
[
1]


One
commenter
believes
that
CSAs
and
CUAs
should
be
allocated
specifically
to
each
of
the
critical
use
categories
authorized
by
the
Parties,
keeping
with
Decision
XVI/
2
and
ExII./
1
which
specify
that
"
each
party
should
endeavor
to
allocate
the
quantities
of
MB
recommended
by
the
Technical
and
Economic
Assessment
Panel
as
listed
in
annex
II "
The
commenter
cites
the
following
reasons
in
support
of
a
use­
specific
system.
[
0157.1]

-
A
use­
specific
allocation
system
would
provide
petitioners
for
methyl
bromide
allocations
assured
access
to
methyl
bromide.
The
"
lump
sum"
approach
currently
implemented
in
the
U.
S.
does
not
guarantee
petitioners
with
approved
CUEs
access
to
methyl
bromide.
­
25­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
-
The
lump
sum
approach
delays
the
transition
to
alternatives
by
preventing
the
U.
S.
government
from
withholding
excessive
methyl
bromide
from
uses
that
have
successfully
begun
transitioning
to
alternatives.

-
The
U.
S.
open
market
system
for
methyl
bromide
allocation
is
an
economic
disincentive
for
anyone
developing
alternatives
because
there
is
no
assurance
that
methyl
bromide
will
eventually
exit
a
particular
use
segment.
This
is
especially
true
since
alternatives
are
generally
more
use­
specific
than
methyl
bromide.

-
A
use­
specific
allocation
ensures
that
those
users
approved
by
the
Parties
as
having
legitimate
critical
needs
are
actually
the
users
who
have
access
to
and
consume
the
methyl
bromide.

-
The
lump
sum
approach
does
not
provide
incentives
to
those
users
with
viable
alternatives
or
guarantee
access
to
those
users
that
actually
qualify.
Instead,
it
allows
a
limited
supply
of
methyl
bromide
to
users
willing
to
pay
the
highest
prices.

In
the
absence
of
a
use­
specific
allocation
system,
this
commenter
supports
the
current
system
that
differentiates
between
pre­
plant
and
post­
harvest
uses.
This
commenter
believes
that
the
availability
of
methyl
bromide
across
use
categories
would
be
a
disincentive
to
developers
and
producers
of
methyl
bromide
alternatives
because
a
methyl
bromide
alternative
is
rarely
useful
for
both
pre­
plant
and
post­
harvest
uses
and
because
the
development
of
alternatives
requires
a
substantial
financial
investment.
For
example,
if
methyl
bromide
that
has
been
approved
for
pre­
plant
uses
were
available
for
post­
harvest
uses,
it
would
be
a
disincentive
for
the
development
of
post­
harvest
alternatives.
[
0157.1]

Response:
EPA
has
addressed
the
above
comments
in
the
Preamble.

5.
Summary
of
Comments
Relating
to
CRITICAL
STOCK
ALLOWANCE
ALLOCATIONS
Commenter
Organization
Document
ID
Number
Dow
Dow
AgroSciences
0157.1
David
Doniger
Natural
Resources
Defense
Council
0173
 
One
commenter
believes
that
EPA's
2005
rule,
which
is
proposed
to
be
carried
forward
unchanged,
correctly
restricts
critical
users'
access
to
stocks.
[
0173]

 
Two
commenters
believe
that
stockpiled
methyl
bromide
should
not
be
accessed
by
those
users
without
approved
critical
needs.
One
commenter
notes
that
potential
users
should
be
required
to
participate
in
the
U.
S.
and
Montreal
Protocol
critical
use
exemption
processes;
without
this
requirement,
users
who
have
not
participated
in
the
process
would
have
an
advantage
and
easy
access
to
methyl
bromide
over
those
who
have
followed
the
process.
Another
commenter
believes
that
this
ruling
is
in
violation
of
the
Protocol,
the
Decision
of
the
Parties,
and
the
Clean
Air
Act.
[
0157.1,
0173]
­
26­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
Response:
EPA
has
addressed
these
comments
in
the
Preamble,
as
well
as
in
the
Response
to
Comment
document
for
the
Framework
rule.

6.
Summary
of
Comments
Relating
to
CLARIFICATIONS
TO
THE
FRAMEWORK
RULE
Commenter
Organization
Document
ID
Number
Susan
Lewis
Methyl
Bromide
Industry
Panel
of
the
American
Chemistry
Council
0158.1,
0161.1
Dennis
Balint
CA
Walnut
Commission
0159.1
Mark
Reddick
Reddick
Fumigants
0160.1
Henry
Giclas
Western
Growers
0162.1
Victor
Lilley
Berry
Tyme
Farms
0166
Kirk
Hunter
Turfgrass
Producers
International
0168.1
Stephen
E.
Payne
Pet
Food
Institute
0170
David
Doniger
Natural
Resources
Defense
Council
0173
Steve
Hensley
USA
Rice
0175
 
One
commenter
states
that,
in
violation
of
the
Protocol,
the
Decisions
of
the
Parties,
and
the
Clean
Air
Act,
EPA's
2005
rules
allow
approved
critical
users
to
double­
dip.
The
commenter
notes
that,
according
to
the
rules,
a
user
may
not
apply
unrestricted
methyl
bromide
stocks
to
the
"
same"
field
or
structure
in
the
same
year.
The
commenter
states,
however,
that
the
rules
can
be
evaded
by
dividing
fields
or
structures
that
really
are
under
common
ownership
into
an
"
A"
and
"
B"
group,
where
critical
use
methyl
bromide
is
applied
to
the
"
A"
field
or
structure
and
other
stocks
to
the
"
B"
field
or
structure,
in
order
to
obtain
more
methyl
bromide
than
was
approved
for
that
user.
The
commenter
believes
that
the
proposed
changes
to
40
C.
F.
R
82.4(
p)(
2)(
vi)
and
82.12(
dd)
expand
the
opportunity
for
evading
the
law
and
request
that
the
proposed
changes
be
abandoned
and
the
corrective
rules
be
issued.
[
0173]

 
Eight
commenters
discuss
EPA's
proposal
to
clarify
the
language
of
two
existing
regulatory
provisions.
The
proposed
amendments
will
add
the
phrase,
"(
b)
becomes
an
approved
critical
use
as
a
result
of
rulemaking"
to
the
end
of
Section
82.4(
p)(
2)(
iv)
and
remove
the
word
"
purchase"
from
Section
82.13(
dd).
The
commenters
support
EPA's
proposal
to
amend
Section
82.4(
p)(
2)(
vi)
to
ensure
that
users
that
become
approved
critical
users
after
supplemental
rulemaking
would
not
be
penalized
for
having
used
non­
critical
use
methyl
bromide
prior
to
their
approval.
However,
the
commenters
do
not
support
EPA's
proposal
to
amend
Section
82.13
and
believes
the
current
regulatory
text
should
be
retained.
The
commenters
do
not
believe
EPA
has
provided
a
clear
explanation
of
why
this
change
is
necessary
and
is
concerned
that
the
amendment
would
prevent
users
to
utilize
unused
methyl
bromide
from
previous
control
periods.
The
commenters
also
believe
conflicts
with
proposed
revisions
to
Section
82.4
(
p)(
2)(
vi).

In
addition,
the
commenters
also
believe
there
is
confusion
concerning
Section
82.4
(
p)(
2)(
vi).
The
pertinent
text
of
EPA's
proposed
amendment
that
is
referenced
by
the
commenters
is
provided
below:

"
No
person
who
purchases
critical
use
methyl
bromide
during
the
control
period
shall
use
that
methyl
bromide
on
a
field
or
structure
for
which
that
­
27­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
person
has
used
non­
critical
use
methyl
bromide,
purchased
during
the
same
control
period,
for
the
same
use ."

The
commenters
state
that
they
are
confused
because
this
text
is
not
included
in
the
Proposed
Ruling
and
differs
from
the
language
proposed
in
the
August
30,
2005
notice
for
the
supplemental
2005
rule.
But,
the
commenters
support
the
amendment
proposed
above
and
believes
it
would
reconcile
Section
82.4
(
p)(
2)(
vi)
with
Section
82.13
(
dd).
[
0158.1,
0161.1,
0159.1,
0160.1,
0162.1,
0166,
0168.1,
0170,
0175]

Response:
EPA
has
addressed
the
above
comments
in
the
Preamble.

7.
Summary
of
Comments
Relating
to
RULEMAKING
AND
THE
REGULATORY
PROCESS
Commenter
Organization
Document
ID
Number
E.
Barclay
Poling
SE
Strawberry
Consortium
9
Sean
Duffy
Steamboat
Association
of
Louisiana
10
Dow
Dow
AgroSciences
0157.1
Dennis
Balint
CA
Walnut
Commission
0159.1
Barry
Bidwell
CA
Grape
and
Tree
Fruit
League
0165,
0167.1
Victor
Lilley
Berry
Tyme
Farms
0166
Kirk
Hunter
Turfgrass
Producers
International
0168.1
Stephen
E.
Payne
Pet
Food
Institute
0170
David
Doniger
Natural
Resources
Defense
Council
0173
Gene
Harrington
NPMA
0174
Steve
Hensley
USA
Rice
0175
 
Eight
commenters
express
concern
that
late
publication
of
the
proposed
rule
did
not
allow
for
adequate
consideration
and
time
for
commenting.
Additionally
they
are
concerned
that
the
rule
may
not
be
finalized
until
the
end
of
2005,
which
would
give
critical
users
no
access
to
methyl
bromide
at
the
beginning
of
2006.
[
9,
0159.1,
0165,
0167.1,
0166,
0168.1,
0170,
0174,
0175]

 
One
commenter
requests
EPA
to
explain
how
the
CUE
has
been
affected
with
the
enforcement
of
ISPM
15.
[
10]

 
One
commenter
feels
that
the
proposed
rule
is
legally
flawed
because
it
fails
to
demonstrate
the
"
market
disruption"
finding
required
by
Decisions
IX/
6,
XVI/
2,
and
Ex.
II/
1.
[
0173]
The
commenter
provides
the
following
arguments
to
support
its
assertion
that
EPA
lacks
information
that
supports
the
"
market
disruption"
finding:

-
EPA
has
failed
to
provide
meaningful
support
of
the
claim
in
the
proposed
rule
that
there
is
"
the
potential
for
a
significant
market
disruption
if
methyl
bromide
were
not
available
for
the
uses
proposed
for
2006."

-
EPA
does
not
define
"
market
disruption"
or
explain
its
meaning.

-
EPA
makes
no
attempt
to
analyze
the
markets
for
commodities
or
other
applications
it
has
granted
a
critical
use
in
the
proposed
ruling.
Instead,
EPA
has
made
broad
assertions
such
as,
the
use
of
methyl
bromide
alternatives
could
cause
"
planting
delays"
and,
in
turn,
­
28­
DRAFT
(
1/
05/
06):
do
not
cite
or
quote
"
unpredictable
but
potentially
significant
economic
effects ,
which
will
disrupt
the
delivery
of
[
the
product]
to
wholesale
buyers."
(
Excerpt
from
CUN
for
Preplant
Soil
Use
for
Peppers
Grown
in
Open
Fields
on
Plastic
Tarpaulins)

-
It
is
impossible
to
demonstrate
that
there
is
a
"
significant
market
disruption"
that
can
be
recognized
legally,
when
the
claimed
critical
use
need
is
higher
than
total
usage
in
recent
years.
[
0173]

 
To
comply
with
the
Montreal
Protocol,
and
specifically
Decision
IX/
6,
one
commenter
is
of
the
opinion
that
the
proposed
rule
and
the
framework
rule
should
be
amended
in
the
following
ways:
[
0157.1]

-
All
available
information
at
the
time
of
allocation
should
be
utilized,
including
new
information
that
becomes
available
after
the
approval
of
critical
use
methyl
bromide
by
UNEP,
in
order
to
reduce
U.
S.
reliance
on
methyl
bromide.

-
Incentives
should
be
provided
to
encourage
methyl
bromide
users
to
utilize
alternatives.
The
commenter
believes
that
through
the
current
CUE
allocation
process,
methyl
bromide
users
may
avoid
demonstrating
success
with
alternatives
or
portray
a
lack
of
"
feasibility"
of
alternatives
to
optimize
their
allocation.

-
Incentives
should
be
provided
for
private
industry
to
develop
alternatives.

-
The
rules
should
require
that
all
existing
stocks
of
methyl
bromide
are
utilized
prior
to
authorizing
new
volumes.

-
Key
terms
such
as
"
technical
feasibility,"
"
economic
feasibility,"
and
"
significant
market
disruption"
should
be
defined
so
that
methyl
bromide
consumers
and
producers
can
better
understand
the
basis
for
the
CUE
decision
making
process.
This
commenter
expresses
reluctance
to
continue
investment
in
the
development
of
methyl
bromide
alternatives
without
a
detailed
understanding
of
these
terms
and
transparency
in
the
critical
use
allocation
processing.
For
example,
the
commenter
notes
that
it
has
provided
information
demonstrating
that
use
of
ProFume
as
a
substitute
to
methyl
bromide
in
wheat
milling
fumigations
results
in
a
less
than
0.1
¢
increase
in
price
per
pound
of
flour
produced
in
these
mills.
The
commenter
does
not
believe
that
this
increase
represents
either
"
economic
infeasibility"
or
results
in
a
"
significant
market
disruption,"
but
suggests
that,
until
these
terms
are
more
clearly
defined,
methyl
bromide
users
can
continue
to
claim
that
this
0.1
¢
price
increase
is
a
significant
market
disruption.
[
0157.1]

Response:
Many
of
the
above
comments
are
suggestions
for
changes
to
the
Framework
Rule
and
are
outside
the
scope
of
the
proposal.
EPA
has
nevertheless
addressed
some
of
the
above
comments
in
the
Preamble.
