Summary of Public Comments for 

the Notice of Proposed Rulemaking: 

The 2007 Critical Use Exemption from the Phaseout of Methyl Bromide

  TOC \o "1-3" \h \z \u    HYPERLINK \l "_Toc147292800"  1.	Summary of
Comments Relating to the PROPOSED CRITICAL USES AND ADJUSTMENTS TO
CRITICAL USE AMOUNTS	  PAGEREF _Toc147292800 \h  2  

  HYPERLINK \l "_Toc147292801"  1.a.	Proposed Critical Uses	  PAGEREF
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  HYPERLINK \l "_Toc147292802"  1.b.	Limiting Critical Conditions	 
PAGEREF _Toc147292802 \h  3  

  HYPERLINK \l "_Toc147292803"  2.	Summary of Comments Relating to
CRITICAL NEED FOR METHYL BROMIDE	  PAGEREF _Toc147292803 \h  10  

  HYPERLINK \l "_Toc147292804"  2.a.	Market Transition to Sulfuryl
Fluoride	  PAGEREF _Toc147292804 \h  10  

  HYPERLINK \l "_Toc147292805"  2.b.	Adoption of Other Alternatives	 
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  HYPERLINK \l "_Toc147292806"  3.	Summary of Comments Relating to
EMISSIONS MINIMIZATION	  PAGEREF _Toc147292806 \h  23  

  HYPERLINK \l "_Toc147292807"  4.	Summary of Comments Relating to
CRITICAL USE ALLOWANCE ALLOCATIONS	  PAGEREF _Toc147292807 \h  26  

  HYPERLINK \l "_Toc147292808"  5.	Summary of Comments Relating to TOTAL
VOLUMES OF CRITICAL USE METHYL BROMIDE	  PAGEREF _Toc147292808 \h  27  

  HYPERLINK \l "_Toc147292809"  6.	Summary of Comments Relating to
INVENTORY OF METHYL BROMIDE	  PAGEREF _Toc147292809 \h  30  

  HYPERLINK \l "_Toc147292810"  6.a.	Proposed Increased Inventory
Reliance	  PAGEREF _Toc147292810 \h  30  

  HYPERLINK \l "_Toc147292811"  6.b.	Proposed Strategic Inventory	 
PAGEREF _Toc147292811 \h  35  

  HYPERLINK \l "_Toc147292812"  6.c.	Accounting for Inventory and
Disclosure of Inventory Information	  PAGEREF _Toc147292812 \h  37  

  HYPERLINK \l "_Toc147292813"  7.	Summary of Comments Relating to
RULEMAKING AND THE REGULATORY PROCESS	  PAGEREF _Toc147292813 \h  38  

 

Summary of Comments Relating to the PROPOSED CRITICAL USES AND
ADJUSTMENTS TO CRITICAL USE AMOUNTS

Proposed Critical Uses

Commenter	Organization	Document ID No

Doug Sharp	Plum Creek	0106

Dr. Scott Enebak	Southern Forest Nursery Management Cooperative	0107

Tom Anderson	Plum Creek Shubuta Nursery	0109

Ken McQuage	Plum Creek Timber Co. – Pearl River Nursery	0110

Gene Harrington	National Pest Management Association	0134

Glen Fischer	California Pepper Commission	0135



Four commenters state that the Members of the Southern Forest Nursery
Cooperative were not listed as Approved Critical Users, even though
other consortium members were listed as in previous rules.  The
commenters request that the proposed rule be amended to reflect the
previous critical use exemption (CUE) Rules for Approved Critical User
and Location of Use, which was:

-“Approved Critical Use: Forest Nursery Seedlings”

-“Approved Critical User and Location of Use: Members of the Southern
Forest Nursery Management Cooperative limited to growing locations in
Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi,
North Carolina, Oklahoma, South Carolina, Tennessee, Texas and
Virginia.” [0106, 0107, 0109, 0110]

Response: EPA agrees with some of the changes proposed by the Southern
Forest Nursery Management Cooperative.  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 2007. 
Therefore, EPA is correcting the Table of Approved Critical Users to
reflect this consortium.  However, EPA is not adding the state of
Kentucky.  To qualify as an “approved critical user” under the
definition at 40 CFR 82.3, an entity must be a member of a consortium
“that applied to EPA for a critical use exemption for a use and
location of use that was included in the U.S. nomination” and that
satisfies other criteria. In this instance, however, the application did
not include Kentucky as a “location of use” and Kentucky was not a
member of the consortium at the time of application.    

One commenter requests that EPA change the wording on p. 38346 of its
proposed description of NPMA as a critical user from:

“Members of the National Pest Management Association associated with
dry commodity structure fumigation (cocoa) and dry commodity fumigation
(processed food, herbs and spices, dried milk and cheese processing
facilities).”

to:

“Members of the National Pest Management Association treating cocoa
beans in storage and associated spaces and equipment and processed food,
cheese, dried milk, herbs and spices and spaces and equipment in
associated processing facilities.” [0134]

Response: EPA agrees with the commenter and has incorporated this
suggestion in the Final Rule, because it clarifies that commodities
shall be fumigated as part of space fumigations.

Limiting Critical Conditions

Commenter	Organization	Document ID Number

David Doniger	Natural Resources Defense Council	0122, 0122.1

John B. Mueller	Fumigation Service & Supply, Inc.	0127, 0127.1

Bruce Houtman	Dow AgroSciences LLC	0132, 0132.1, 0132.2

Craig Weyandt	Florida Golf Course Superintendents Association	0133



Two commenters address the “market disruption” condition required by
Decisions IX/6, XVI/2, and Ex. II/1:

One commenter believes that the proposed rule lacks the market
disruption finding, noting that, according to the Decisions, “uses
cannot qualify as ‘critical’ unless the nominating party has
established that ‘the lack of availability of methyl bromide for that
use would result in a significant market disruption.’”  The
commenter believes that EPA does not provide “meaningful support”
for its claims of market disruption. [0122]

Response:  Parties to the Protocol have considerable discretion in their
application of the “significant market disruption” concept.  The
preamble to the Final Rule discusses EPA’s application of the
significant market disruption concept.  EPA’s Office of Pesticide
Programs (OPP) conducts the analytical basis for EPA’s critical use
nominations (CUN) to the Protocol.  These nominations include a thorough
sector-specific analysis of the economic feasibility of methyl bromide
alternatives.  Factors considered in these economic analyses include
yield losses, market windows and crop rotations.  The 2007 CUN chapters
are available on the docket for this rule (EPA-HQ-OAR-2005-0538).  In
general, for sectors in which EPA determines that no economically
feasible alternatives are available, EPA infers that the absence of
methyl bromide would result in a significant market disruption.  EPA’s
interpretation of economic feasibility is included in the memorandum
entitled “Development of 2003 Nomination for a Critical Use Exemption
for Methyl Bromide for the United States of America,” available on the
docket for this rulemaking (EPA-HQ-OAR-2005-0538). The Methyl Bromide
Technical Options Committee (MBTOC) thoroughly reviews EPA’s economic
analysis in the CUNs.

One commenter states that the CUE application for the Florida Golf
Course Superintendents Association (FGCSA) was rejected because of a
failure to demonstrate that the loss of methyl bromide would result in a
market disruption.  The commenter believes that the term “market
disruption” is undefined by EPA and states that the product of the
golf industry is the playing field rather than a crop yield.  [0133]

Response: Supporting technical and economic data are required for
securing critical use exemptions.  After a lengthy review of the FGCSA
application and subsequent requests for additional information, EPA
economists were unable to support the argument that a significant market
disruption would occur if golf courses included in the FGSCA application
were unable to use methyl bromide.  An important part of EPA’s
determination was that it did not find that a lack of methyl bromide
would result in significant revenue losses for the golf course industry.
 

EPA did nominate 78,040 kg of critical use methyl bromide for 254
hectares of sod turfgrass production.  Methyl bromide was only nominated
for use in production of certified sod.  The price of non-certified sod
is roughly 75% lower than certified sod.  EPA did not find that a lack
of methyl bromide would cause a significant market disruption in the
non-certified sod market.  Similarly, EPA has not found that a lack of
methyl bromide would create a significant market disruption in the
golfing industry, because it did not find a strong link between methyl
bromide use and golf industry revenues.  Subsequently, FGCSA has offered
to provide EPA with survey information about the relationship between
demand for golf and poor course conditions.  EPA will continue to
consider all relevant information for future nominations.

One commenter states that it is unclear what objective basis EPA uses to
determine when and how much “time to transition” to an alternative
is required.  According to the commenter, users already know which
alternatives work for them, but there is no incentive to change when
methyl bromide is readily available. The commenter believes that the 15%
transition rate does not reflect the reality of the market’s ability
to transition and recommends that a more rapid, expedited transition
rate be established to quickly reduce reliance on methyl bromide.
[0132.1]

Response: In the 2006 Final Rule (71 FR 5989), a transition range of
12%-18% was estimated for sulfuryl fluoride for each structural
sub-sector.  This projection was based on the 2008 Bromide Usage Newer
Numerical Index (BUNNI), which was completed in January 2006. To gather
additional information, on August 23, 2006 EPA issued additional data
requests under Sec. 114 of the Clean Air Act to a small sample of flour
millers and fumigant applicators that are familiar with sulfuryl
fluoride and its efficacy. EPA will continue to seek the best available
data regarding the economic and technical feasibility of alternatives
and to integrate this data into its transition rate estimates.

The commenter also recommends that EPA properly define key terms such as
“technical feasibility,” “economic feasibility,” and
“significant market disruption.”  The commenter believes that until
there are domestic definitions for these terms, stakeholders will not
understand the basis for which the U.S. has and will make CUE decisions,
and the process will lack transparency.  For guidance, the commenter
suggests that Canadian definitions for these terms could be employed.
[0132.1]

Response: EPA has not established a generic definition of “technical
feasibility.”  This is partly due to the wide range of sectors that
participate in the CUE application process.  EPA’s understanding is
that Canada also lacks a generic definition of technical feasibility. 
For more information on how technical feasibility is assessed during the
domestic review process, and the methodology employed by the Office of
Pesticide Programs during the review of CUE applications, please refer
to the detailed memorandum entitled “Development of 2003 Nomination
for a Critical Use Exemption for Methyl Bromide for the United States of
America,” available on the docket for this rulemaking
(EPA-HQ-OAR-2005-0538).  This memo also discusses EPA’s application of
the economic feasibility and significant market disruption concepts.  

Parties have significant discretion in their application of the
significant market disruption concept.  Canada has defined
“significant market disruption” as “the loss of an industry sector
or production sector (e.g. one crop), not just the loss of one company
or facility, unless a single company represents a large portion of the
market.”  EPA agrees that given the discretion granted to Parties
under the Protocol, the U.S. could adopt Canada’s definition, but the
U.S. is not required to do so.  EPA conducts a thorough sector specific
analysis of economic feasibility in its critical use nominations (CUNs),
which are publicly available on the docket for this rule making
(EPA-HQ-OAR-2005-0538).  Stakeholders are encouraged to consult the memo
mentioned above, and past CUNs for a better understanding of how EPA
applies these concepts.

The commenter further recommends that EPA ensure accuracy and validity
of all limiting critical condition claims by requiring methyl bromide
critical users to provide documentation which forms the basis for the
“reasonable expectations” that these conditions may arise.  [0132.1]

Response: EPA uses the reporting and recordkeeping requirements
published in the Framework Rule (69 FR 76982) to ensure the accuracy and
validity of information pertaining to limiting critical conditions.  The
Framework Rule also details the penalties for end-users, producers,
importers, distributors, and applicators who do not follow the reporting
requirements.

Pre-Plant Uses 

One commenter addresses the EPA-approved change in the karst label
restrictions for 1,3-D products (i.e., the change in the restriction
from a regional to site-specific limitation or prohibitions of product
use in areas overlying karst topography compared to karst geology), as
well as the series of 2005 MBTOC questions and U.S. government responses
referred to in the proposed rule. In summary, the commenter states that
the U.S. government attempted to evaluate the impact of the 1,3-D karst
restriction label change approved by EPA in 2006 before the change was
approved, and thus failed to predict, and therefore accommodate, the
most important aspects of the change.  The commenter states that as a
result of this change, the only remaining methyl bromide critical use
nomination (CUN) justification associated with a 1,3-D karst restriction
would be for applications that occur closer than 100 feet to the land
features.  According to the commenter, this restriction affects a much
smaller percentage of agricultural land than the 8% to 40% claimed in
the 2007 methyl bromide CUN. Therefore, the commenter requests that: a)
the 1,3-D karst restriction be removed from the proposed 2007 methyl
bromide allocation rule as a limiting critical condition; and b) that
the U.S. Government conduct a post-hoc evaluation of this regulatory
change and its impact on the amount of methyl bromide that is exempted
from phaseout in the relevant use categories. [0132.1]

Response: EPA correctly anticipated that the label would change from
restricting 1,3-D use over karst geology, which underlies virtually all
of Florida, to karst topographical features such as sinkholes, caverns,
springs and sinking streams.  In anticipation of this label change, EPA
conducted studies with officials from the State of Florida to estimate
the extent of area affected by karst topographical features, and what
proportion of that land contains commercial operations that would, as a
result, need critical use methyl bromide.  EPA’s assessment did not
consider the 100-foot buffer that was part of the label change. 
However, EPA considers critical use methyl bromide requests on an
individual basis, but the U.S. nominates according to sector; therefore
a post-hoc evaluation of this regulatory change, as requested by the
commenter, would not have a substantial impact on the 2007 critical use
exemption.  The karst label restriction is only one of the limiting
critical conditions for growers in the Southeast U.S.  For example, a
grower that may have been inaccurately assumed to be in a karst
restricted area may still have yellow and purple nutsedge, nematodes,
disease infestation and California geranium or cut-leaf evening primrose
infestation, all of which are listed as limiting critical conditions in
Table I of the preamble to the Final Rule.

In addition, the 100-foot buffer is not the only use restriction on the
new 1,3-D label. There is a 24(c) registration for additional 1,3-D use
restrictions in 31 Florida counties.  These restrictions include: 1)
"...use on soils that have a relatively shallow hard pan or soil layer
restrictive to downward water movement (such as spodic horizon) within 6
feet of the ground surface and capable of supporting seepage
irrigation..."; 2) inject as deep as possible but avoid subsurface
irrigation water; 3) Must have Restricted Use Pesticide license to
apply.

For the reasons discussed above, EPA does not find it necessary to redo
the 2007 CUE analysis, but the Agency is taking appropriate steps to
update and further quantify its analysis of karst label restrictions. 

This commenter also requests the removal of the following limiting
critical conditions for pre-plant use since effective alternatives to
methyl bromide are available:

Moderate to severe yellow or purple nutsedge infestation – The
commenter states that Sandea(, Envoke( and Dual( Magnum, and
metam-sodium, Treflan(, and Devrinol( when used in combination with
1,3-D, have proven effective for nutsedge control in tomato, pepper and
other crops.

Response: As the 2007 CUN explains, research results confirm that methyl
bromide alternatives provide inconsistent control of nutsedge weed
species.  Nutsedge is an extremely competitive weed in tomato fields and
can cause significant yield losses in the Southeast.  None of the
alternatives recommended by the Methyl Bromide Technical Options
Committee (MBTOC) provide sufficient nutsedge control at
moderate-to-severe infestation rates in the Southeastern U.S.

Moderate to severe nematode infestation – The commenter states that
1,3-D is widely recognized as a highly effective nematicide, and its
value has been demonstrated on numerous crops for more than 40 years.

Response: As the 2007 CUN explains, methyl bromide is the only option to
effectively control the target pests, which includes nematodes, found in
the Southeastern U.S. where pest pressures commonly exist at moderate to
severe levels.  In the California strawberry sector, nematodes are among
the target pests that must be controlled with methyl bromide at moderate
to severe pressure.  Methyl bromide 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 its methyl bromide
requests since the inception of the CUE program.

Moderate to severe fungal disease infestation – The commenter states
that Chloropicrin, either alone or in combination with other products
including 1,3-D, is a viable methyl bromide alternative that has
demonstrated excellent control of soil-borne pathogens on numerous
crops.

Response: EPA is aware that Chloropicrin and 1,3-D can provide adequate
control of fungal pathogens in certain circumstances.  However, there
are circumstances in which methyl bromide is the only feasible option to
control fungal disease infestation. For example, orchard replant into
previously planted orchard land (the typical situation in California)
requires reducing pathogen populations (mostly nematodes and fungi) and
nutrient sources of previous orchard tree roots and root remnants.  This
requires an effective material that is volatile and can penetrate into
the soil to reach these plant materials.  In sandy, loam soils, where
restrictions do not apply, metam-sodium and 1,3-D may be an acceptable
alternative that can penetrate to the target areas.  In other
situations, this compound and other alternatives are not able to move
sufficiently through the soil to remove the problem pests.  Thus, there
is currently a critical need for MeBr in this situation.  The infrequent
use of methyl bromide for orchard replant and the positive benefits of
vigorous early tree growth make methyl bromide a key component of
orchard fruit and nut production in areas where alternative methods are
not effective.  There are similar situations for other pre-plant sectors
which are described in more detail in the 2007 CUN and 2008 CUN.

This commenter also discusses the following two pre-plant limiting
critical conditions: 

Occupied structures – According to the commenter, this condition is
likely relevant only to the affected fraction and not the complete
field.  The commenter also believes that local buffer zone requirements
like those imposed by the California Dept. of Pesticide Registration
(CADPR) alter the status and meaning of “Occupied Structures” as a
limiting critical condition.

Response: The 2007 CUN explains that U.S. estimates of the area affected
by 100 foot buffer zones are based on data from applicants and
alternatives manufacturers and include many factors.  For example, the
eastern U.S. has many small “pick-your-own” strawberry farms (less
than 4 hectares) where the impact of a 30 meter buffer is more
pronounced than on the larger farms in California or Florida.  Because
of the significant impact that these estimates have on the overall
request for methyl bromide, EPA is evaluating additional methods to
further substantiate and quantify the impacts of buffer zones.

Township limits – Using the CADPR’s “California Management Plan:
1,3-Dichloropropene” as an example, the commenter states that the
township limits on 1,3-D usage only become a limiting condition if the
1,3-D allocation limit within the given control year has been met for
the particular township/range relevant to the specific critical user.
The commenter also states that since the institution of the plan in
2002, there have been less than 8 instances where growers within
specific townships in California have been unable to use 1,3-D products
due to township cap allocations. [0132.1]

Response: EPA continues to support listing township caps as a relevant
limiting critical condition for California crops.  EPA is aware that
this is a fluid rather than static situation and the availability of
1,3-D is contingent on other fumigation decisions made in these
townships.  There are many examples, such as sweet potato slip
production, where township caps demand serious consideration.  Given the
preference of producers of sweet potato slips for 1,3-D, if it is
available, any methyl bromide will go unused if possible.  In Merced
County, California, there is an especially high concentration of crops
that require fumigation, particularly almonds, nectarines, peaches, and
grapes.  The above factors make predicting the availability of 1,3-D for
sweet potato transplant production very difficult. Nevertheless, EPA
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 been exceeded.

Post-Harvest uses

Two commenters recommend that the limiting critical conditions described
below be removed as they are no longer relevant. [0127.1, 0132.1]. One
commenter states that since the preparation of the 2007 CUNs, ProFume
has superseded heat and phosphine as the preferred alternative in
post-harvest use categories. [0132.1]

Response: Although phosphine does kill insects, it is corrosive to
metals, especially copper and its alloys, bronze and brass.  These
metals are important components of the electronics that run the
manufacturing equipment.  Phosphine requires longer application time,
which can be a severe economic concern for producers trying to meet key
market windows.  Resistance to phosphine has also been reported for
several stored product pests.  Despite these concerns, EPA is pleased
that phosphine is used in areas without electronics and where
temperature is not a factor.

Sufficiently high temperatures will kill insects given enough time; but
heat sources are not a feasible option in all areas of the United
States.  Heat also causes rancidity in butters and oils and denatures
proteins.  EPA has determined that heat is being used in areas where it
is feasible.

Section 2.a. of this document discusses the efficacy of sulfuryl
fluoride. 

Older structures that can not be properly sealed – According to two
commenters, the efficacy of different fumigants does not vary based on
the quality of sealing and so a structure not capable of effective
sealing has similar limitations whether fumigated with methyl bromide or
an alternative.  The commenters further state that sulfuryl fluoride has
worked well in the fumigation of older structures. [0127.1, 0132.1] One
commenter states that proper sealing is a “label requirement” of
methyl bromide and that older structures that cannot be sealed well
should not be fumigated at all due to the potential risk to bystanders.
[0127.1]  

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. Meanwhile, 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 some
type of fumigation.  In facilities where mites are present, such as in
ham and cheese processing facilities, methyl bromide must be used, even
if the structure is properly sealed, because mites are not on the
sulfuryl fluoride label.  Facilities using methyl bromide are always
required to follow regulatory guidelines to protect bystanders.

Presence of sensitive electronic equipment subject to corrosivity –
Two commenters believe that this criterion exists only to address the
alternative fumigant, phosphine. They note that ProFume is not corrosive
to sensitive electronic equipment and since it is approved for
post-harvest use, this condition should not be a criterion for
determining access to methyl bromide under the proposed rule. [0127.1,
0132.1]

Response: The corrosive nature of phosphine is one of the reasons that
methyl bromide is still necessary in some instances.  Reductions in
post-harvest critical use allowances made in the Final Rule account for
the uptake of ProFume (a fumigant product consisting of sulfuryl
fluoride).

Rapid fumigation – One commenter states that ProFume is capable of
performing rapid fumigations to the same extent as methyl bromide and
this criterion should thus be removed from the proposed rule. [0132.1] 

Time to transition to an alternative – One commenter states that 10
years has been an adequate amount of time to transition to alternatives.
[0127.1]

Response: EPA’s numerical analysis of sulfuryl fluoride can be found
in the 2008 BUNNI, available on the docket for the Final Rule
(EPA-HQ-2005-0538).  EPA continues to collect information regarding the
efficacy of sulfuryl fluoride.  For example, in August 2006 the Agency
received information, using its information collection authority under
Section 114 of the CAA, from a sample of millers and fumigant
applicators who have experience with sulfuryl fluoride and its efficacy.
 Sulfuryl fluoride is discussed in more detail in Section 2.a. of this
document.

While EPA continues to support the transition to methyl bromide
alternatives it does not support an artificial deadline for the
phase-out of critical use methyl bromide.  The Montreal Protocol
continues to allow for methyl bromide use when there are no technically
or economically feasible alternatives.  This is emblematic of the
pragmatic nature of the Protocol, which has contributed to its great
success.

The same commenter also states that the proposed rule does not reflect
the August 2006 EPA report titled “Tolerance Reassessment Report of
Food Quality Protection Act (FQPA) Tolerance Reassessment and Risk
Management Decision (TRED) for Methyl Bromide, and Reregistration
Eligibility Decision (RED) for Methyl Bromide’s Commodity Uses.” 
According to the commenter, in this document, the EPA calls for
additional regulatory restrictions on all uses of methyl bromide in the
post-harvest use category, including buffer zones and reduced use rates.
[0132.1]

Response: The comment period for the methyl bromide TRED and RED was
extended to November 24, 2006 (71 FR 57505), and EPA is now reviewing
the comments received.  Therefore, it would be inappropriate for EPA to
consider the TRED and RED in the Final Rule.  EPA’s Office of
Pesticide Programs (EPA/OPP) is the lead EPA program office for the
re-registration of methyl bromide as well as the methyl bromide CUNs. 
EPA/OPP will consider the impacts of the methyl bromide re-registration
in future CUNs.

Summary of Comments Relating to CRITICAL NEED FOR METHYL BROMIDE

Market Transition to Sulfuryl Fluoride 

Commenter	Organization	Document ID Number

James Bair	North American Millers’ Association	0112, 0112.1

Betsy Peterson	CA Bean Shippers Association	0113

David A. Shorr	Lathrop & Gage L.C.	0114

None	Albemarle Corporation	0116, 0116.1

Stephen Payne	Pet Food Institute	0118

Pamela Peckman	The Industrial Fumigant Company	0119

Nancy Sandrof	American Chemistry Council	0120, 0120.1

Mark Reddick	Reddick Fumigants, Inc.	0121, 0121.1

David Doniger	Natural Resources Defense Council	0122, 0122.1

Miguel Cea	AG-Fume Service, Inc.	0123

Marcy Martin	CA Grape & Tree Fruit League	0126

John B. Mueller	Fumigation Service & Supply, Inc.	0127, 0127.1

David Culp	Dickson Chemical Co., Inc.	0128, 0128.1

Jim Garrett	Fume Tech, Inc.	0129, 0129.1

Jack Coleman, Jr, Jeff Coleman, Stephen Roy, Keith Alvis	Research
Fumigation Company, LLC	0130, 0130.1

Roberta Firoved	CA Rice Commission	0131, 0131.1

Bruce Houtman	Dow AgroSciences LLC	0132, 0132.1, 0132.2

David McAllister	Chemtura Corporation	0136

Lynn Bragg	Chocolate Manufacturers Association	0137, 0137.1

Suresh Prabhakaran	Dow AgroSciences LLC	0138, 0138.1, 0138.10, 0138.13,
0138.14, 0138.15, 0138.17, 0138.18, 0138.19, 0138.2, 0138.20, 0138.21,
0138.22, 0138.23, 0138.24,  0138.25, 0138.26, 0138.3, 0138.4, 0138.5,
0138.6, 0138.9

Edward Ruckert	McDermott, Will & Emery for the Crop Protection Coalition
0139

Dennis Balint	CA Walnut Commission	0140, 0140.1

Steve Hensley	USA Rice Federation	0141, 0141.1, 0141.2, 0141.3, 0141.4,
0141.5, 0141.6, 0141.7, 0141.8

Amy Schaffer	Weyerhaeuser Company	0142

William Goodrich	United Agribusiness League	0146

William Murray	American Forest & Paper Association	0149



Nine commenters believe that EPA’s proposed 12% to 18% transition
rates for sulfuryl fluoride in post-harvest sectors are too high and
that therefore post-harvest methyl bromide allocation cuts made “to
reflect the continuing transition to sulfuryl fluoride” are premature.
[0112.1, 0113, 0114, 0116.1, 0118, 0119, 120.1, 0121, 0123, 0136]

Response: In the Final Rule EPA reduced the total volume of critical use
methyl bromide by 53,703 kilograms to reflect the continuing transition
to sulfuryl fluoride.  The Agency based the reductions on data contained
in the 2008 BUNNI, which was submitted to the Ozone Secretariat in
January 2006 and is available in the docket for this rule.  EPA believes
that the 2008 CUN still represents the best available data on the
transition to sulfuryl fluoride.

Four commenters cite the Motion of Stay of the Effectiveness of Sulfuryl
Fluoride Tolerances in the U.S. (EPA-EPA-HQ-2005-0174-0013) to back the
assertion that it is “premature” for the EPA to rely on sulfuryl
fluoride. [0113, 0114, 0118, 0121]  

One commenter states that the regulatory and legal challenges behind the
stay address violations of the FFDCA, APA, and FQPA, which, if
successful, could prevent the use of sulfuryl fluoride as a pesticide
for at least a portion of 2007. [0116.1]   Another commenter states that
the establishment of tolerances for the use of sulfuryl fluoride on food
commodities under the FFDCA is being challenged. [0120.1]  An additional
commenter also states that the regulatory status of sulfuryl fluoride is
currently being challenged. [0112.1]

Response: If a stay is imposed on the effectiveness of pesticide
tolerances for sulfuryl fluoride and fluoride promulgated in January
2004 and July 2005, EPA will adjust its analysis of methyl bromide CUEs
accordingly.  As of the date of signature on the Final Rule, no final
action has been taken on the request for a stay of tolerances;
therefore, the Final Rule assumes that the tolerances will remain
effective.

One commenter states that data collection on the efficacy of sulfuryl
fluoride in comparison to methyl bromide is just beginning this year and
will continue over the next 3 years.  The commenter requests that the
EPA not make additional cuts in methyl bromide allocation until the
potential alternatives have been thoroughly studied.  The commenter
provides multiple supporting documents. [0112.1]   

Response: Critical use methyl bromide reductions to account for the
uptake of sulfuryl fluoride are based on EPA’s analysis in the 2008
BUNNI, which represents the best available data on the transition to
sulfuryl fluoride.  Since the 2008 CUN was published in February 2005,
EPA has collected additional data on the efficacy of sulfuryl fluoride
as a post-harvest fumigant.  Most recently, in August 2006 EPA gathered
additional data about sulfuryl fluoride use from a sample of millers and
fumigators under the authority of Sec. 114 of the Clean Air Act. The
reductions in the Final Rule reflect EPA’s determination that the
Agency’s current understanding of sulfuryl fluoride is strong enough
to estimate the transition rate to this potential methyl bromide
alternative.  The Agency will continue to collect information to update
and strengthen its analysis of sulfuryl fluoride.

One commenter states that it is unclear whether EPA is still attempting
to calculate the expected market uptake of sulfuryl fluoride, but that
this should be feasible based on required reported data on the use of
methyl bromide.  The commenter also states that in 2004 “EPA stated
that it would take up to 5 fumigation cycles of use before the efficacy
of sulfuryl fluoride could be determined in the specific circumstances
of the user.”  The commenter additionally requests that EPA identify
the specific post-harvest uses to which the 12% to 18% estimation was
applied. [0120.1]

Response: EPA is attempting to calculate the expected market uptake of
sulfuryl fluoride.  Reported data on past sales of critical use methyl
bromide is one type of data available to the Agency, but other data
sources can be useful in projecting future uptake of alternatives. 
Comments submitted to the docket for the Final Rule have been helpful in
this regard.  Most recently, in August 2006 EPA gathered additional data
about sulfuryl fluoride use from a sample of millers and fumigators
under the authority of Sec. 114 of the Clean Air Act.  One purpose of
this data collection was to estimate market uptake.  EPA will consider
this data in future rulemakings.  While the Sec. 114 data consisted of a
small sample, and the responses were all claimed confidential by the
responding entities, the variation in responses generally supported the
assumptions made in developing the 2008 BUNNI.  For example, while some
users have had success with sulfuryl fluoride, others experienced
increased costs because they used larger volumes of gas.  However,
before the BUNNI can be adjusted further, additional data is required
with regard to the cost of fumigating with sulfuryl fluoride, the volume
of gas required in each sub-sector, and the ability of sulfuryl fluoride
to generate effective kill at egg stages.

To clarify, the 12-18% transition rate that the commenter refers to is
an annual transition rate for post-harvest food processing facilities,
and considers all registered chemical and non-chemical alternatives, one
of which is sulfuryl fluoride.  The 12-18% transition rate is an annual
rate.  For example, as the 2008 BUNNI shows, EPA estimates that the
North American Millers can transition 58% of their current critical use
methyl bromide consumption to alternatives, with a 12% per year rate of
transition.  In addition, EPA also notes that the post-harvest sector is
not the only sector in which the 2008 BUNNI considers transitions to
registered chemical and non-chemical alternatives.  For example, the
BUNNI includes a 5% per year transition rate for Florida strawberries
and a 4% annual transition rate for Georgia eggplant.

EPA applied the 12% to 18% annual transition rate referred to in the
Final Rule to the following post-harvest sub-sectors: processed foods
(17%), spices/herbs (17%), cocoa (17%), rice millers (18%), pet food
(15%), bakeries (14%), and NAMA (12%).  These transition rates were
calculated in the 2008 BUNNI, which is available in the docket to this
rule (EPA-HQ-OAR-2005-0538).  

One commenter states that too many concerns about sulfuryl fluoride
exist for it to be situated to become a viable alternative to methyl
bromide. [0123]

Response: EPA accounted for concerns with sulfuryl fluoride in the 2008
CUN and 2008 BUNNI.  Current obstacles to the uptake of sulfuryl
fluoride are also discussed below in this document.

One commenter states that adjustments for the use of sulfuryl fluoride
were already taken into account in the initial 2007 CUE applications,
and does not understand why EPA increased expectations of sulfuryl
fluoride use from those numbers.  The commenter also states that current
sulfuryl fluoride use is being substantially subsidized by the
manufacturer and that additional investigation and analysis to determine
the economic feasibility of the product is needed. [0139]

Response:   The CUE reductions EPA is making for the use of sulfuryl
fluoride are based on the data contained in the 2008 CUN, which is
available on the docket for the Final Rule (EPA-HQ-OAR-2005-0538).  This
analysis still represents the best available data on the transition to
sulfuryl fluoride, including factors such as potential obstacles in the
export of treated commodities.  EPA understands that the 2007 CUE
applications adjusted for sulfuryl fluoride to some degree.    The
Agency used the applications as a valuable source of information to
start the 2007 CUE allocation process.  Other sources of data used in
developing the CUN and the BUNNI include data submitted by the
registrant and fumigation companies, in addition to data compiled by
USDA researchers.   In the Final Rule EPA used the best available data,
from the 2008 CUN, to make adjustments for sulfuryl fluoride.  However,
in reviewing the calculations in the proposed rule, EPA noted one
instance of double-counting which had been applied to the milling
sector.  Therefore the overall sulfuryl fluoride uptake amount was
revised from 68,170 to 53,703 kilograms.  

Two commenters stress that sulfuryl fluoride is not a methyl bromide
substitute for pre-plant fumigations, and therefore reductions should
apply only to post-harvest users and the total volume available to
pre-plant uses should remain unchanged. [0142, 0149]

Response: In the CUE Framework Rule (69 FR 76982) EPA created two
distinct types of methyl bromide critical use allowances (CUAs): CUAs
for pre-plant soil uses and CUAs for post-harvest and structural uses. 
EPA agrees with the commenter that at this time sulfuryl fluoride is
only a technically and economically feasible alternative in the
post-harvest, commodity and structural sectors.  Therefore, the
transition to sulfuryl fluoride did not affect EPA’s allocation of
pre-plant critical use allowances in the Final Rule.

One commenter believes that sulfuryl fluoride is not meeting
expectations as an alternative. [0146]

Five commenters contend that EPA provides no factual basis for the 12%
to 18% sulfuryl fluoride transition estimate [0120.1, 0126, 0132.1,
0142, 0149].  

Response: EPA’s most recent analysis of the transition rate to
sulfuryl fluoride is contained in the 2008 CUN and 2008 BUNNI, which are
available in the docket for the Final Rule (EPA-HQ-OAR-2005-0538).

One commenter states that while sulfuryl fluoride may have potential as
a commodity treatment, it is unclear whether it will hold up under
commercial use.  The commenter believes that EPA should “investigate
more thoroughly to determine what the economic feasibility of the
product truly is.” [0126]  

Response: EPA’s analysis recognizes that significant hurdles currently
exist in the commodities sector that constrain the economic feasibility
of sulfuryl fluoride.  These hurdles include: (1) many U.S. trading
partners have not yet registered sulfuryl fluoride, (2) the relatively
high price of sulfuryl fluoride at this time, (3) industry inexperience
with sulfuryl fluoride, and (4) research suggesting that higher
concentrations of sulfuryl fluoride are required in colder temperatures
and to kill egg-stage insect pests.  EPA will continue to seek the best
available data regarding the economic and technical feasibility of
sulfuryl fluoride, and to integrate this data into its analyses.

A second commenter suggests that EPA “poll those industries that have
the opportunity to use sulfuryl fluoride and identify those who can and
will convert, and if not, why not.” [0142]

Response: On August 23, 2006, EPA issued letters to a sample of
fumigation and flour milling operations under Section 114 of the CAA in
order to obtain better data to support its sulfuryl fluoride transition
estimates.  EPA may use the data obtained from the Section 114 responses
in future rulemakings and we will continue to consider additional
sulfuryl fluoride research data.

One commenter states that sulfuryl fluoride has not been tested in real
time circumstances for the commenter’s time sensitive industry and
therefore more time is needed to determine its efficacy and use
potential before further restricting methyl bromide use. [0140]

Response: EPA’s most recent analysis acknowledges factors in the
walnut industry that challenge the economic feasibility of sulfuryl
fluoride.  For example, many major export markets have not established
tolerances for sulfuryl fluoride use on walnuts.  Because walnuts are
fumigated as they leave the field, and before they are segregated into
export and domestic use, the use of sulfuryl fluoride will continue to
be restricted until the tolerances for sulfuryl fluoride on walnuts are
established.

from C. Cook to D. Hufford entitled “Evaluation of the Ability of
Sulfuryl Fluoride (ProFume™) to Replace Methyl Bromide in Post-Harvest
Uses, Document No. EPA-HQ-OAR-2005-0538-088). [0113, 0118, 0121, 0136,
0141] 

Repsonse: As the internal EPA memo (EPA-HQ-OAR-2005-0538; document
number 088) indicates, EPA is aware that circumstances exist in which
sulfuryl fluoride is a less effective methyl bromide alternative.  For
example, very high concentrations of sulfuryl fluoride are required to
kill egg stage pests in cold temperatures.  Similarly, the 2008 CUN
acknowledges that EPA has limited economic data on sulfuryl fluoride’s
performance relative to methyl bromide.  To gain more of this type of
data, on August 23, 2006, EPA issued letters under Section 114 of the
CAA to a sample of fumigation and flour milling operations that have
experience with both methyl bromide and sulfuryl fluoride.  While the
114 responses consisted of a very small sample, there was some variation
among the responses with regard to comparative costs.  

The commenters state instances where EPA recognized areas where it needs
to collect more information about sulfuryl fluoride.  The 2008 CUN
analysis, which estimates a 12-18% sulfuryl fluoride transition rate for
2007, was made in light of the Agency’s current data limitations.  In
other words, the information EPA has collected supports an estimated
12-18% transition rate. Transition rates were only estimated for sectors
in which sulfuryl fluoride is registered, and where there are data
demonstrating that key pests are controlled by sulfuryl fluoride.  As
the Agency collects more information about sulfuryl fluoride it will
revise this estimate accordingly.

Three commenters highlight the 2008 CUN nomination document claims,
among them that implementation of sulfuryl fluoride, if feasible, will
occur gradually, that fumigation with sulfuryl fluoride at lower
temperatures is ineffective, and that the requirement for only
“incidental fumigation” for processed foods is not always possible. 
[0118, 0121, 0136]

Response: The 2008 CUN and 2008 BUNNI considered the points raised by
the commenter about the feasibility of sulfuryl fluoride as a methyl
bromide alternative, and estimated a 12-18% transition rate to sulfuryl
fluoride in 2007.

Eight commenters support the use of sulfuryl fluoride for post harvest
applications.  [0122, 0127.1, 0128.1, 0129.1, 0130.1, 0132.1, 0137.1,
0138.1]  Five commenters state that the fumigant is an alternative to
methyl bromide already being adopted by the marketplace and has been
used successfully at several rice mills. [0127.1, 0128.1, 0129.1,
0130.1, 132.1]  Two commenters believe that sulfuryl fluoride should be
able to displace more than the proposed 15% of the structural uses of
methyl bromide in 2006.  [0132.1, 0122]  One commenter states that
initial use of ProFume has shown promise for fumigation of cocoa beans
and would like to see continued “science-based regulatory progress in
this regard.” [0137.1]

One commenter details ProFume’s qualities in comparison to methyl
bromide, discussing efficacy, economics, and precision.  The commenter
believes that ProFume can compete with methyl bromide in all of these
categories. [0129.1]

Response: EPA’s 2008 CUN and 2008 BUNNI use the best available data to
discuss characteristics of sulfuryl fluoride and other circumstances
that currently limit sulfuryl fluoride’s technical and economic
feasibility as a methyl bromide alternative.  EPA continues to support
research and other efforts to improve the viability of alternatives to
methyl bromide.

One commenter states that sulfuryl fluoride’s strong penetrating
ability makes it more effective in the fumigation of old wooden
structures than methyl bromide. [0127.1]

Response: EPA appreciates the commenter’s point about the penetrating
ability of sulfuryl fluoride.  Data indicates that heat improves the
efficacy of sulfuryl fluoride as a structural fumigant.  However, the
2008 CUN notes that heat may not be suitable for wood frame buildings or
commodities with high oil content, because in these situations heat may
foster the development of rancidity.  The 2008 CUN is available on the
docket for this Final Rule (EPA-HQ-OAR-2005-0538).

One commenter believes that ProFume is capable of replacing 94% of all
current post-harvest methyl bromide uses [0132.1, 0138.1], and two
commenters claim that it can replace all post-harvest uses by December
31, 2007.  One commenter calls for a quicker implementation of greater
amounts of sulfuryl fluoride in post-harvest uses and proposes a
reduction in 2007 methyl bromide CUEs exceeding the proposed 68,170 kgs
“in recognition of the regulatory and market advances of ProFume”.
[0132.1]

Response: EPA’s analysis in the 2008 CUN does not support the
conclusion that ProFume is capable of replacing 94% of all post-harvest
methyl bromide uses, at least not as soon as 2007. The 2008 CUN and 2008
BUNNI use the best available data to discuss characteristics of sulfuryl
fluoride and other circumstances that currently limit sulfuryl
fluoride’s technical and economic feasibility as a methyl bromide
alternative.  Some of these limitations are discussed above in this
document.  

Two commenters state that ProFume is registered in all 50 states as well
as in “key countries outside the U.S.”  [0132.1, 0138.1], and one
commenter provides details regarding its registration status in various
states as well as the Maximum Residue Limits (MRLs) approval status as
per the Codex Alimentarius Commission.  [0132.1]

Response: EPA appreciates the information provided by this commenter. 
The information about additional countries establishing MRLs may be
considered in future analyses.  

One commenter states that ProFume provides broad spectrum, all life
stage pest control, and does not deplete the ozone layer. The commenter
cites and attaches 19 documents to support these assertions.  The
documents address: “SPIP Rebound before and after fumigation, Flour
Beetle activity in a mill, SF Vs MB fumigation comparison, ProFume field
bioassay, ProFume fumigation of rice mills in California, Commercial
performance of ProFume, Commercial performance of ProFume detail, Red
Flour Beetle monitoring after MD Fumigations, USDA Research Paper,
Economics of commercial ProFume fumigations, Canadian ProFume PMRA
registration efficacy evaluation, Development of Sulphuryl Fluoride in
China, U.S. Cocoa Manufacturer’s Association, Testimonials & Letters
of Support, Current ProFume Registration Status, ProFume commercial
summary data, Fumigation Economics, ProFume retreat facts, and
Commercial case studies.” [0138.1]

Response: EPA appreciates the technical information provided by this
commenter.  EPA’s Office of Pesticide Programs will consider the data
provided by the commenter in future analyses of sulfuryl fluoride’s
potential as a methyl bromide alternative.

(Memorandum from C. Cook to D. Hufford entitled “Evaluation of the
Ability of Sulfuryl Fluoride (ProFume™) to Replace Methyl Bromide in
Post-Harvest Uses, Document No. EPA-HQ-OAR-2005-0538-088).

One commenter states that “phase-out timetables are intended to
accelerate the market penetration of alternatives” but that market
penetration of sulfuryl fluoride is inhibited by the continued
availability of methyl bromide for uses that sulfuryl fluoride could
address.  The commenter believes that the environmental issue at stake
(protection of the ozone layer) should enable an accelerated rate of
market penetration of alternatives. [0122]

Response: Based on the assessment performed for the 2008 BUNNI and the
2008 CUN, which are available on the docket for the Final Rule
(EPA-HQ-OAR-2005-0538), a transition rate of between 12%-18% reflects
the best available data on the feasible uptake of sulfuryl fluoride in
the affected portions of the industry.  EPA believes that the projected
uptake in 2008 and subsequent years under a business-as-usual scenario
can be achieved earlier by removing the corresponding amount of methyl
bromide from the approved critical use level, for the affected sectors. 
This enables an accelerated rate of market penetration as compared to a
scenario with no reductions in critical use methyl bromide.

Another commenter asserts that the pace of phaseout should not be left
wholly to the “market” to determine and that the phaseout rate
should be purposefully driven by the EPA. The commenter also states that
more than 25% of the grain milling market has already demonstrated
success using ProFume. The commenter recommends that future
re-evaluation of a methyl bromide alternative should permit
consideration of increasing the displacement percentage and that methyl
bromide consumers submitting an allocation request to the EPA should
also be required to provide 1) an estimation of a “Transition to a
methyl bromide alternative” timeline and 2) the conditions necessary
to meet the timeline. [0132.1]

Response: EPA does not believe that the pace of the phaseout is entirely
market driven.  Methyl bromide is a heavily regulated substance, and the
United States Government continues to intervene in the market to
accelerate the transition to alternatives through regulation, research,
and other means.  Based on the assessment performed for the 2008 BUNNI
of the 2008 CUN, which are available on the docket
(EPA-HQ-OAR-2005-0538), a transition rate of between 12%-18% reflects
the best available data on the feasible uptake of sulfuryl fluoride. 
EPA believes that the projected uptake in 2008 and subsequent years
under a business-as-usual scenario can be achieved earlier by removing
the corresponding amount of methyl bromide from the approved critical
use level.  This is an example of how EPA can affect market conditions
to accelerate the transition to methyl bromide alternatives.

EPA requires that critical use applications include extensive
information about methyl bromide alternatives, including plans for
future research of potential alternatives.  EPA will continue to
consider public comments regarding the critical use exemption
application process.

One commenter believes that sulfuryl fluoride has the potential to
replace methyl bromide for some, but not all, applications.  The
commenter states that sulfuryl fluoride is successfully used to fumigate
mill structures for the California rice industry, reducing reliance on
methyl bromide, but that methyl bromide still must be used to fumigate
products shipped in wood floor shipping containers since sulfuryl
fluoride has a tendency to penetrate wooden material. [0131.1]

Seven comments expressed concerns related to the safety, efficacy,
and/or trade limitations associated with the use of sulfuryl fluoride. 
[0114, 0116.1, 0119, 0120.1, 0136, 0140, 0141]

Response: EPA’s estimated transition rate accounts for the limitations
listed by the commenters.  The 2008 CUN explicitly notes that safety,
efficacy and trade regulations impede the uptake of methyl bromide
alternatives, such as sulfuryl fluoride.  EPA believes that the 2008 CUN
still represents the best available data on the transition to sulfuryl
fluoride,, which also accounted for potential transition barriers and
therefore did not include an uptake amount for the commodites sector due
to export market concerns.  

Four commenters cite recent health concerns about the safety of sulfuryl
fluoride on food products. [0114, 0116.1, 0119, 0136]  Three commenters
state that a recent study published by the National Research Council
(National Academy of Sciences) raises serious health concerns associated
with the use of fluoride. [0116.1, 0136, 0141]

Response: EPA is aware of the National Research Council study, and is
monitoring developments regarding sulfuryl fluoride tolerances.  Since
no final action has been taken with regard to a stay of sulfuryl
fluoride tolerances, in the Final Rule EPA assumed those tolerances will
remain effective.  If a stay is imposed, EPA will adjust its analysis
accordingly.

Three commenters state that there are few or no international tolerances
for sulfuryl fluoride.  Thus, food grown using sulfuryl fluoride
generally cannot be shipped to other countries. [0116.1, 120.1, 140]

Response: EPA is aware that many major U.S. trading partners have not
established tolerances for sulfuryl fluoride, which restricts its use. 
These limitations were considered in the 2008 CUN and 2008 BUNNI. 

One commenter expresses concern that some fumigations with sulfuryl
fluoride are not in compliance with current interpretations of the
sulfuryl fluoride label.  The commenter also states that the uptake of
sulfuryl fluoride is 2 to 3 times lower than the uptake of methyl
bromide, and therefore 2 to 3 times more must be used for equal
efficacy. [0119] A second commenter also addresses the shortcomings of
the current ProFume label. [0141]

Response: EPA would be interested in further details that the commenter
can provide about fumigations with sulfuryl fluoride that are not in
compliance with current interpretations of the label.

EPA’s analysis recognizes that sulfuryl fluoride is temperature
dependent and that higher concentrations are necessary to kill egg-stage
pests, especially when temperatures are low.

One commenter gives a more detailed explanation of why sulfuryl fluoride
uptake has not kept pace with EPA’s expectations, including:

Efficacy:  The commenter states that sulfuryl fluoride is a weak
ovicide, and therefore two fumigations must be done (the second to kill
the emerged insects that were still eggs at the time of the first
fumigation), increasing the price of use, compared to the one fumigation
necessary with methyl bromide.   The commenter also states that ProFume
does not penetrate as deeply into stored grain as methyl bromide when
the grain requires a top-down fumigation, and the resulting multiple
fumigations required with ProFume in such situations (e.g. when grain is
transported on barges) are prohibitively costly and time consuming. 
Additionally, the commenter states that one mill that performed a
ProFume fumigation found live insects immediately following the
fumigation.

Temperature:  The commenter states that sulfuryl fluoride fumigation
success rates are comparable to methyl bromide rates (excluding egg
eradication) at 80(F, however if the temperature is below that level,
sulfuryl fluoride rapidly loses efficacy and thus more of the gas is
needed.

Response: In the 2008 CUN, EPA notes that sulfuryl fluoride is
temperature dependent, and that to kill eggs requires higher
concentrations except at optimal temperatures.

Sealing:  The commenter states that because sulfuryl fluoride has a much
higher vapor pressure than methyl bromide, it is difficult to “hold”
in a building even with a good seal.  

Response: The difficulty of “holding” sulfuryl fluoride shows up in
economic data, because applicators will be forced to use more sulfuryl
fluoride to achieve acceptable results.  EPA will continue to consider
this as it collects more information regarding the efficacy of sulfuryl
fluoride.

Label Problems:  The commenter states that the sulfuryl fluoride
registration is not as “robust and clear” as the methyl bromide
label and believes that this leaves fumigators and millers unsure of
whether they are using sulfuryl fluoride in accordance with regulations.
 The commenter also states that the ProFume label does not allow for the
presence of certain ingredients that are warehoused in bulk in mills
along with the targeted grain and cannot be removed.  Additionally, the
ProFume label does not cover some major pests, and many state
regulations therefore prevent mills that contain those pests from using
ProFume.

Response: The 2008 CUN acknowledges that many mills produce products
that are not listed on the current label.   Although the label allows
“incidental” fumigation, the mills will need to move the products so
that they are not fumigated.  Adoption of sulfuryl fluoride will be
delayed for some of these mills, where the products listed on the label
cannot be removed, until tolerances for these ingredients are sought by
the registrant, reviewed by EPA, and granted (if they meet eligibility
criteria).  EPA addresses these issues in further detail in an internal
memo that is available on the docket (Memorandum from C. Cook to D.
Hufford entitled “Evaluation of the Ability of Sulfuryl Fluoride
(ProFume™) to Replace Methyl Bromide in Post-Harvest Uses”
(EPA-HQ-OAR-2005-0538-088).

Tolerances:  The commenter addresses the lack of tolerance in export
markets for sulfuryl fluoride.  The commenter states that the use of
sulfuryl fluoride in another country does not automatically mean that
U.S. commodities receive tolerances and can be exported to those
countries.  The commenter also states that the FAO Codex has not
historically established a tolerance for sulfuryl fluoride, and has
recently only by shortening the multi-year review process, which leaves
Codex and EPA “open to attack” and puts “the future of sulfuryl
fluoride in doubt.”  The commenter cites the relevant sources
regarding other countries.

Response: EPA is aware that many major U.S. trading partners have not
yet established tolerances for sulfuryl fluoride, which restricts its
use.  These limitations were considered in the 2008 CUN.

Cost, Dosage, and Other Issues:  The commenter states that in order to
have a successful fumigation at an “All Life Stages” (ALS) dosage,
over twice as much ProFume is needed as methyl bromide.  This increased
dosage will cause mills to surpass the 10,000 pound limit and thus force
them into Form R reporting to EPA under the EPCRA, adding burden and
cost to the use of ProFume.  The commenter states that to fumigate at a
Post Embryonic Plus (PEP) dosage, killing only post-egg life stages, the
fumigations performed each year would double, bringing the pricing up to
that of an ALS treatment.  The commenter states that the price of
ProFume is also affected by the large dosages needed to counteract its
dissipation through structural materials as well as higher freight costs
due to higher weights and higher labor costs due to the additional setup
requirements such as piping, fan placement, extra sealing, and the
tearing down of those fixtures or payment for permanent piping.  The
commenter states that ProFume does have the benefits of smaller
non-occupied buffer zones and quicker venting of the gas. [0141]

Response: The 2008 CUN includes economic analysis of alternatives,
including sulfuryl fluoride.  EPA is actively collecting additional data
on the economics of sulfuryl fluoride.  Most recently, in August 2006
EPA gathered additional data about sulfuryl fluoride use from a sample
of millers and fumigators under the authority of Sec. 114 of the Clean
Air Act.  As stated above, the responses to the 114 inquiry demonstrated
a variety of results when comparing the costs of methyl bromide and
sulfuryl fluoride.  While the 114 requests did not comprise part of the
BUNNI technical assessment, EPA may use the data in future rulemakings. 


2.b. Adoption of Other Alternatives

Commenter	Organization	Document ID Number

Steve Godbehere	None	0117

Stephen Payne	Pet Food Institute	0118

Mark Reddick	Reddick Fumigants, Inc.	0121, 0121.1

David Doniger	Natural Resources Defense Council	0122, 0122.1

Richard Matoian	CA Fig Advisory Board	0124

Michal Mellano	CA Cut Flower Commission	0125

Bruce Houtman	Dow AgroSciences LLC	0132, 0132.1, 0132.2

Craig Weyandt	Florida Golf Course Superintendents Association	0133

Glen Fischer	California Pepper Commission	0135

David McAllister	Chemtura Corporation	0136

Don Stringfield	Tree Improvement	0144

George Lowerts	International Paper	0145

Peter Joyce	Value Recovery, Incorporated	0115



Seven commenters believe that EPA should maintain the current amount of
critical use methyl bromide until “technically and economically
feasible alternatives” are readily available, as directed by the
Montreal Protocol.  The commenters also state that if alternatives were
available, the volume of critical use applications would have decreased,
as the cost of submitting a complete application is high. [0117, 0118,
0121, 0124, 0125, 0133, 0136]  

Response: EPA reiterates that critical use exemptions are only for those
areas where technically and economically feasible alternatives are not
available.

One commenter contends that while EPA stated in 1993 that alternatives
would be available before the phase-out occurred in 2005, no new
alternatives are available for many pre-plant soil uses despite over
$100 million spent on research.  The commenter illustrates this
assertion with a photograph of unhealthy pine seedlings that are
receiving a lower dose of methyl bromide than in previous years in
response to reduced supply and increased costs. [0117] 

Response:  The 2007 CUN was based on careful and robust analysis, and
was for those areas where alternatives are not feasible.  The commenter
is correct that substantial resources have been devoted to finding
methyl bromide alternatives.  The United States Government alone has
invested over $150 million in this research effort.  Private sector
investment in research has also been significant.  Thanks in part to
this research, and to the successful implementation of alternatives and
pest management practices, the United States nomination for critical use
methyl bromide for 2007 was 29% of the 1991 consumption baseline, and
for 2008 it was 25% of the 1991 baseline.

 

Five commenters believe that traditional phase-out models cannot be
applied to methyl bromide.  One commenter stated that EPA should not
“apply an industrial phase-out model to agricultural chemicals or an
international phase-out model to domestic conditions.”  The commenters
state that methyl bromide’s unique role presents phase-out challenges,
including finding alternatives that will prove effective when applied
directly to the environment and used in various climatic and pest
conditions, and concurrently finding alternatives that are less toxic
than methyl bromide.  The commenters also state that developing and
implementing agricultural alternatives in the U.S. is a lengthy process
due to the country’s large size, broad range of crops produced, and
unique labor force. [0118, 0121, 0125, 0136, 0145]  Additionally, one of
the commenters also states that the same principles of complexity as
noted above for agriculture apply to methyl bromide use in industrial
structural fumigations. [0118]

Response: At 40 CFR 82.3 the definition of critical use refers to the
lack of technically and economically feasible substitutes and
alternatives that “are suitable to the crops and circumstances
involved.”  Thus, the methyl bromide critical use criteria are
tailored specifically to the challenges faced by methyl bromide users.

One commenter specifically states that the model of replacing CFCs as
refrigerants is not applicable to replacing methyl bromide with
alternatives due to the complicating factor of matching its reactive
properties. [0115]

One commenter states that no alternatives currently available are as
effective at controlling disease and pathogens as well as methyl
bromide. [0144]

Response:  Due to the variety of crops and circumstances faced by methyl
bromide users, EPA analyzes methyl bromide alternatives on a
use-specific basis.  If EPA finds that an economically feasible and
technically feasible alternative exists for a specific methyl bromide
use, that use does not qualify as a “critical use” as defined at 40
CFR 82.3.  This is true even if methyl bromide is the most effective
option for controlling disease and pathogens given the crop or
circumstances in question.   

One commenter states that existing alternatives to methyl bromide for
the commenter’s purposes are well researched and objects to the
rejection of CUE applications due to lack of research provided when
“there is nothing new on the market to research.” [0135]

Response: The commenter is referring to the 2008 CUE application
submitted by the California Pepper Commission (CPC), in which the CPC
did not provide priorities for future research on methyl bromide
alternatives.  The 2007 CUN notes that for pepper production in
California, chloropicrin, 1,3-D, metam-sodium, water management, and
plant varieties will continue to be tested for efficacy against P.
capsici  and other soil-born pathogens.  In the CPC’s 2009 critical
use application, the CPC listed five alternative chemicals or cultural
practices worthy of testing.  Therefore, EPA does not agree with the
commenter that there is nothing left to research.  In the absence of new
products on the market, methyl bromide users could test methods for
using methyl bromide more efficiently, including emission minimization
options.

Production and consumption of methyl bromide for critical uses is only
permitted if it is demonstrated that an appropriate effort is being made
to evaluate alternatives and substitutes.

One commenter states that EPA has not accounted for alternatives other
than sulfuryl fluoride in its proposal.  The commenter states that EPA
acknowledges that the review associated with the development of the U.S.
nomination was written two years prior to the year of exemption, and
therefore situations where new alternatives have become available may
warrant a post-hoc review. [0122]

Response: EPA’s Final Rule relies on the best available data.  This
information is primarily found in the 2008 CUN, which is available on
the docket for this Final Rule (EPA-HQ-OAR-2005-0538) where all relevant
substitutes and alternatives are considered.

One commenter expresses dissatisfaction with EPA’s delay in
implementing a transition to alternatives. The commenter states that
this delay has affected his organization’s ability to generate a
return on its significant investments in research and development of
alternatives. According to the commenter, the delay not only resulted in
spending additional time and money to continue repetitive research, but
also further slowed interest in adoption of alternatives. [0132.1]

Response: In an effort to speed adoption of alternatives, the U.S.
government has invested over $150 million in research on potential
methyl bromide substitutes and alternatives. Promotion of alternatives
through education and extension, robust testing of alternatives and
assessment of alternatives continue to be EPA priorities.

3. Summary of Comments Relating to EMISSIONS MINIMIZATION

Commenter	Organization	Document ID Number

David McAllister	Chemtura Corporation	0136

Amy Schaffer	Weyerhaeuser Company	0142

George Lowerts	International Paper	0145

Peter Joyce	Value Recovery, Incorporated	0115



Two commenters believe EPA should continue to encourage emission
minimization without mandating the use of emissions control technology. 
The commenters believe that fundamental questions remain regarding the
technical, economic, and regulatory feasibility of many of the emissions
control measures currently on the market and that it is too early to
make decisions on further reductions to CUE volumes based on research
trials. [0136, 0145]  

Response: EPA continues to encourage the use of emissions minimization
techniques and notes that the critical use exemption application
contains a worksheet on emissions reduction.

One commenter expresses concern that “EPA has not assisted in
technology transfer in identifying new beneficial alternatives and
management techniques.”  The commenter believes that many methyl
bromide users are unaware of the newly available high-barrier films or
the reasons why it has taken so long to develop glues that will work
with virtually impermeable films (VIF) in flat fume situations.  The
commenter suggests that EPA facilitate improvements by communicating the
availability of beneficial alternatives and publicizing results of
critical research in a timely manner. [0142]

Response: EPA agrees with the commenter that technology transfer is an
important aspect of the transition to methyl bromide alternatives.  The
Methyl Bromide Alternatives Outreach (MBAO) conference includes
industry, growers, researchers and government, and meets once a year to
share the results of methyl bromide alternatives research.  MBAO has
included research about emissions minimization technologies such as VIF
and metalized films, and these technologies continue to be a focus of
MBAO.  For example, the 2006 MBAO conference included five expert
presentations on the subject of mulch film and emission reduction.  More
information about MBAO and the 2006 conference in Orlando, FL can be
found at   HYPERLINK "http://www.mbao.org/"  http://www.mbao.org/ .  The
2006 Conference was sponsored by MBAO with cooperation from EPA, The
Crop Protection Coalition and the U.S. Department of Agriculture.  

One commenter believes that the potential for emissions reduction of
methyl bromide is great, but that barriers of “power, politics, common
sense, leadership, and will” (rather than technology or economics)
stand in the way of the implementation of existing technologies.  The
commenter states the following barriers:

The commenter states that the main barrier to adoption of emissions
controls is the lack of commercial incentives for industry to use
emissions control technology for pre-plant, post-harvest, or QPS
applications.  The commenter acknowledges the existence of an incentive
specifically targeted to soil, however.  The commenter believes that if
an entity can verify that it used methyl bromide but did not emit it
into the atmosphere (i.e. through reuse, recycling, or chemical
destruction), then that use should not be deducted from the entity’s
CUE.  The commenter asserts that the Clean Air Act and Montreal Protocol
support this approach. [0115]

Response:  As a Party to the Montreal Protocol, the United States is
committed to eliminating emissions of ozone-depleting substances (ODS)
by meeting its phaseout targets for ODS production and consumption.  The
phaseout approach of replacing methyl bromide with alternatives is
supported by Decision IX/6, which states that certain uses of methyl
bromide are only considered critical if the lack of availability of
methyl bromide for those uses would result in a significant market
disruption and if no technically or economically feasible alternatives
exist. It is expected that as new alternatives are developed, fewer uses
will be considered critical under Decision IX/6, and indeed, since 2005,
the level of critical use methyl bromide nominated by the U.S. and
approved by the Parties to the Protocol has decreased.  To that end,
since recycling/reclamation of methyl bromide is not considered new
production or consumption, emissions control technology may have an
increasingly important role to play in recapturing and
recycling/reclaiming methyl bromide for continued use as new
production/consumption allowances become more limited over the coming
years.  Additionally, EPA strongly encourages the use of emissions
minimization techniques, and notes that the critical use exemption
application contains an emission reduction worksheet.

 

According to the commenter, a second barrier is the nine month delay in
the production, subsequent limited availability, and poor quality of a
reporting form for data on emissions control technology mandated by the
Montreal Protocol through Decision 17/9 and CRP-10 at the 25th OEWG
meeting in June, 2005.   The commenter further states that the form,
once completed, was never responded to by the Montreal Protocol and that
the commenter was denied the opportunity to present the data at a side
session of the 2006 OEWG meeting, in violation of Article IX, Paragraph
1(a).  The commenter requests EPA’s help in addressing this issue with
the Protocol.

The U.S. submitted a report to the Ozone Secretariat in accordance with
Decision XVII/11 on June 20, 2006, regarding the efficacy, logistical
issues and economic feasibility of technologies to recapture, recycle,
destroy, or reduce methyl bromide emissions from fixed facilities.  The
U.S. report to the Parties contains very detailed information on the
capture and phase transfer catalysis technology developed by the
commenter, and is available on the docket for this action,
EPA-HQ-OAR-2005-0538.

While this comment is outside the scope of this rulemaking, EPA notes
the commenter’s concern and is open to discussing this issue further
with the commenter.

The commenter states that a third barrier is the misperception that
emissions controls would lessen the incentive to develop alternatives. 
The commenter responds that: (1) even if the argument were true, it is
not a problem since the atmosphere is still protected either way; (2)
manufacturers have already had 14 years to develop alternatives; and (3)
in response to claims that users who adopt emissions control methods
will be reluctant to give up methyl bromide when it is completely phased
out, that methyl bromide is unlikely to ever be completely phased out
and that policies directed toward that end “serve no public
purpose.”  The commenter further states that since there are only 4
authorized methyl bromide suppliers in the U.S., they do not face any
competitive incentive to lower prices or, thus, increase their sales,
e.g. by supporting emissions controls.

Response: While strongly encouraging the use of emissions minimization
techniques, EPA remains committed to the phase-out of methyl bromide. 
As noted in the preamble of Final Rule, EPA believes that by reducing
supply through the phaseout there is an inherent incentive to use the
ever-diminishing quantities of methyl bromide more effectively, thus
inducing methyl bromide users to limit emissions.

The commenter additionally summarizes the following recommendations for
commercial incentives for the implementation of methyl bromide controls:
(1) introduce a system where users report the amount of methyl bromide
used, destroyed after use, and emitted, and provide access to increased
sources of methyl bromide; (2) publish methyl bromide emissions data
from users on an annual basis to give them incentive to gain a marketing
edge based on using stated green technologies; (3) publish a
“drop-dead rate” approximately 5 years in the future where a minimum
of 50% of methyl bromide use must be contained in emissions-control use
or else prohibited; and (4) allow new methyl bromide competition into
the U.S., providing incentives for new suppliers to add value to their
product through emissions control. 

The commenter further states that commercial-scale demonstrations of
methyl bromide use and instantaneous destruction have been successful
and that the system used is affordable and readily available. [0115]

Response: EPA appreciates the commenter’s recommendations, and the
Agency will consider them as it continues to encourage the use of
emissions minimization techniques, while focusing on the phaseout of
methyl bromide.

EPA remains committed to identifying and promoting ways in which methyl
bromide emissions can be minimized from fumigation applications;
however, the commenter’s proposed recommendations [#1, #2, and #3
above and page 19 through page 22 of the original comment #0147] are
outside the purview of this EPA rulemaking.    

In response to recommendation #4 [paragraph 4 above and page 22 original
comment #0147], the price of methyl bromide is determined by market
forces of supply and demand, and because only a certain amount of new
production/consumption is approved by the Parties, EPA limits the supply
of newly produced/imported methyl bromide.  As a result, it is highly
likely that prices for methyl bromide are higher than those that would
be experienced were there no cap on new production. With regard to the
number of methyl bromide manufacturers, there are a limited number of
sources of elemental bromine needed to produce methyl bromide and a very
limited number of companies that are capable of producing methyl
bromide. Of those few companies capable of producing methyl bromide,
even fewer are actually producing methyl bromide based on each
company’s assessment of whether such production is profitable and/or
is necessary to meet customer agreements under contract. 

Because supply of newly produced methyl bromide is already restricted by
the CUE levels approved by the Parties to the Protocol, and given the
constraints related to access to bromine, the market for producing
methyl bromide is a decreasing one, not likely to attract new
manufacturers.  Emissions control technologies should be of interest,
however, to methyl bromide users who could recover and recycle/reclaim
methyl bromide for reuse and thereby avoid purchasing new methyl
bromide.  

4.  Summary of Comments Relating to 

TWO-SECTOR APPROACH TO CRITICAL USE ALLOWANCE ALLOCATIONS 

Commenter	Organization	Document ID Number

Betsy Peterson	CA Bean Shippers Association	0113

Nancy Sandrof	American Chemistry Council	0120, 0120.1

Mark Reddick	Reddick Fumigants, Inc.	0121, 0121.1

Bruce Houtman	Dow AgroSciences LLC	0132, 0132.1, 0132.2

David McAllister	Chemtura Corporation	0136

Amy Schaffer	Weyerhaeuser Company	0142



According to five commenters, the current two-sector critical use
allocation approach is preferable over switching to a sector-specific
approach and should be continued by EPA because it is consistent with
the manner in which the methyl bromide market currently operates, and is
easier to implement from a logistical and administrative standpoint.
[0113, 0120.1, 0121, 0136, 0142]

Response: EPA is maintaining the current two-sector allocation approach
in the Final Rule.

One commenter believes that critical use and critical stock allocations
should be allocated specifically to each of the Critical Use Categories
as authorized by the Parties.  The commenter states that other countries
have already established use-specific allocation methods.  The commenter
believes that the U.S.’s “lump sum” approach does not guarantee
that approved critical users will have access to methyl bromide and
allows users with the greatest ability to pay to block access for
critical users.  Further, the commenter believes that the “lump sum”
approach delays the transition to alternatives and does not provide EPA
with any ability to keep excessive methyl bromide from users whose uses
have successful alternatives.  The commenter requests that if EPA does
not adopt a use-specific approach, that it at least maintain the current
two-sector allocation system. [0132.1]

Response:  Approved critical users may only purchase methyl bromide for
approved critical uses.  Therefore, there is a limited ability for
critical users to “block access” for other critical users by
hoarding methyl bromide, as the commenter suggests.  While it is
theoretically possible that approved critical users could somehow get
blocked from purchasing methyl bromide, the Agency is unaware of that
happening, and believes that it would be an unlikely outcome of the
current allocation system.

As the preamble of the Final Rule discusses, although the universal
approach does not directly allocate allowances to each category of use,
EPA anticipates that reliance on market mechanisms will achieve similar
results indirectly.  The UN Technology & Economic Assessment Panel
(TEAP) recommendations are based on data submitted by the U.S., which in
turn are based on recent historic use data in the current methyl bromide
market.  In other words, the TEAP recommendations agreed to by the
Parties are based on current use patterns and the current use patterns
take place in a market where all pre-plant and post-harvest methyl
bromide uses compete for a lump sum supply of critical use material. 
Therefore, the Agency expects that under a system of universal
allocations the actual critical use will closely follow the sector
breakout listed by the TEAP.

EPA determined in the final Framework Rule (69 FR 76989) that the
universal allocation was the most efficient and least burdensome
approach that would achieve the desired environmental results, and that
a sector-specific approach would pose significant administrative and
practical difficulties.  A summary of the options analysis conducted by
EPA, which contributed to EPA’s decision in the Framework Rule to
adopt the current system, is discussed in the Regulatory Impact Analysis
(EPA-HQ-OAR-2005-0538-0086) available on the docket for the Final Rule. 
The majority of commenters continue to favor the current universal
allocation system as a straightforward approach with minimal
administrative burden.

5.  Summary of Comments Relating to TOTAL VOLUMES OF CRITICAL USE METHYL
BROMIDE

Commenter	Organization	Document ID Number

B. Sachau	None	0101

James Bair	North American Millers’ Association	0112, 0112.1

None	Albemarle Corporation	0116, 0116.1

Stephen Payne	Pet Food Institute	0118

Nancy Sandrof	American Chemistry Council	0120, 0120.1

Mark Reddick	Reddick Fumigants, Inc.	0121, 0121.1

David Doniger	Natural Resources Defense Council	0122, 0122.1

Miguel Cea	AG-Fume Service, Inc.	0123

Richard Matoian	CA Fig Advisory Board	0124

Michal Mellano	CA Cut Flower Commission	0125

Craig Weyandt	Florida Golf Course Superintendents Association	0133

David McAllister	Chemtura Corporation	0136

Edward Ruckert	McDermott, Will & Emery for the Crop Protection Coalition
0139

William Goodrich	United Agribusiness League	0146

Peter Joyce	Value Recovery, Incorporated	0115



One commenter asserts that a phaseout of methyl bromide will not
contribute to a reduction in ozone depletion.  The commenter states that
methyl bromide used for fumigation contributes only 0.075% of ozone
depletion and believes that this amount has no bearing statistically. 
The commenter cites WMO’s Scientific Assessment of Ozone Depletion:
2002 and attaches a summary table using data from this report.  The
commenter further believes that the phaseout of methyl bromide may cause
environmental damage. [0121]

Response: EPA has addressed these comments in Section V.E. of the
preamble to the Final Rule.

One commenter believes that there are no critical uses for methyl
bromide and that its use should be fully banned. [0101]

Response: Methyl bromide production and consumption was phased out in
the U.S. on January 1, 2005.  However, the Clean Air Act allows EPA to
establish exemptions for critical uses of methyl bromide.

One commenter believes that the phaseout of methyl bromide runs counter
to the principles of integrated pest management (IPM) by reducing the
number of available pest management tools. [0112.1]

Response: While EPA acknowledges the benefits of IPM, the Agency remains
committed to upholding the Montreal Protocol and Title VI of the Clean
Air Act, which share the goal of reducing and eliminating the production
and consumption of ozone depleting substances, such as methyl bromide.

The commenter further expresses dissatisfaction with the downward
adjustments from the baseline-adjusted value to account for “double
counting” on the part of the applicants.  The commenter states that
applicants have already made voluntary cuts in their requests based on
knowledge of alternatives, and thus when EPA makes cuts based on the
same information they too are guilty of double counting and should make
upward adjustments in allocations to account for this. [0112.1]

Response: As the commenter states, EPA does not allow applicants to
double-count their needs for critical use methyl bromide.  The same
logic applies to critical use reductions made by EPA.  In making methyl
bromide reductions to account for the transition to sulfuryl fluoride
the Agency has taken care to avoid double-counting reductions. The
Agency has done this by accounting for the initial reductions made for
sulfuryl fluoride by applicants in their critical use applications.

CUE applications are an important starting point in the CUE allocation
process.  All steps in the allocation process, including the CUN, MBTOC
recommendations, and authorization by the Parties, represent fresh
consideration of these applications.  The preamble of the Final Rule
states that “The report of the MBTOC indicated that the MBTOC did not
make any reductions in these use categories for the uptake of sulfuryl
fluoride in 2007 because the United States Government indicated that it
would do so in its domestic allocation procedures.  Therefore, EPA is
reducing the total volume of critical use methyl bromide to reflect the
continuing transition to sulfuryl fluoride.”  Thus, EPA’s
reductions, which are based on the analysis in the 2008 CUN, were made
from CUE amounts approved by MBTOC, which did not already include
reductions for the uptake of sulfuryl fluoride.  

Eleven commenters object to EPA’s proposed maximum allowable amount of
methyl bromide to be used for critical uses in 2007 on the grounds that
it is lower than required by the Parties to the Montreal Protocol.
[0116.1, 0118, 0120.1, 0121, 0123, 0124, 0125, 0133, 0136, 0139, 0146]

Response: EPA’s proposed maximum allowable amount of methyl bromide is
less than the amount identified by the Parties to the Protocol for two
reasons. First, events that occurred after the nomination process were
considered in the Final Rule. More specifically, the report of the
Methyl Bromide Technical Options Committee (MBTOC) indicated that MBTOC
did not make reductions for the uptake of sulfuryl fluoride in 2007
because the United States Government indicated that it would do so in
its domestic allocation process.  This accounts for the 53,703-kilogram
reduction in critical use methyl bromide in the Final Rule to reflect
the uptake of sulfuryl fluoride.  Second, as described in the December
23, 2004 Framework Rule (69 FR 76997), EPA is not permitting entities to
build inventories of methyl bromide produced or imported under the
critical use exemption program.  To prevent the buildup of such
inventories, any volumes of methyl bromide produced or imported under
the critical use exemption in a calendar year, but not used in that
year, must be reported to EPA the following year.  These reporting
requirements appear at §§82.13(f)(3)(xvi), 82.13(g)(4)(xviii), and
82.13(bb)(2)(iii).  An amount equivalent to this “carry-over,”
whether pre-plant or post-harvest, is deducted from the total level of
allowable new production and import in the year following the year of
the data report.  

Six commenters state that the use amount allowed by the Parties already
represents a 50% reduction of the amounts of methyl bromide requested by
users in their applications and an additional 30% reduction that was
applied during the international review process. [0118, 0121, 0124,
0133, 0136, 0146]

Response: 2007 requests for critical use methyl bromide were over 60% of
the 1991 baseline.  After thorough technical and economic analysis
described in the 2007 CUN, the United States Government nominated 29% of
baseline for 2007.  As described in more detail in the preamble of the
final rule, the Parties to the Montreal Protocol authorized the
equivalent of 26.4% of baseline for 2007 critical uses.  For reasons
described above and in the preamble of the Final Rule, further
reductions were taken to account for the transition to sulfuryl fluoride
and for “carry over” critical use methyl bromide not used in 2005. 
The final rule allocates amounts of critical use methyl bromide
equivalent to 24.4% of baseline (with 7.5% coming from pre-phaseout
inventory).

One commenter states that the allocation level approved by the Parties
is nearly 10% below the EPA’s CUN submitted for 2007 allocations,
which the EPA stated at the time was the minimum amount of methyl
bromide needed by the U.S. for critical uses in 2007, though the EPA now
proposes to further decrease the amount available. [0116.1]

One commenter states that approximately 65% to 70% of the 1991 baseline
for methyl bromide is still needed compared to the 29% allowed level for
2007. [0115]

Response: Thorough economic and technical analysis of the applications
received, as reflected in the 2007 CUN, resulted in a U.S. nomination of
approximately 7,403 metric tons of methyl bromide (or 29% of 1991
baseline) to meet U.S. critical uses in 2007.  Critical use methyl
bromide is only for uses for which feasible economical and technical
alternatives do not exist.

One commenter objects to the pending proposal to provide a petition
process for expanding the allowable production/import amount above the
current proposed levels and believes instead that production and import
should be decreased to account for the large inventory. 

This commenter also states that total usage data for 2003 is lower than
the amounts requested for critical uses in 2005 and 2006.  The commenter
believes that total usage data for 2004 is also lower, but states that
this data is not yet available from EPA.  The commenter believes that
the aggregate usage data are “more reliable than use-by-use data,”
which is currently used for post hoc assessments of technological and
economic feasibility, and expresses concern over the undisclosed
use-by-use data sources. [0122]

Response:  EPA is not finalizing the proposed petition process at this
time.  Comments regarding inventory are addressed in the next section of
this document.  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) available on the docket for that rule
(EPA-HQ-OAR-2003-0230).  

6.  Summary of Comments Relating to INVENTORY OF METHYL BROMIDE

6.a.  Proposed Increased Inventory Reliance

Commenter	Organization	Document ID Number

Doug Sharp	Plum Creek	0106

Dr. Scott Enebak	Southern Forest Nursery Management Cooperative	0107

Tom Anderson	Plum Creek Subuta Nursery	0109

Ken McQuage	Plum Creek Timber Co. – Pearl River Nursery	0110

Betsy Peterson	CA Bean Shippers Association	0113

None	Albemarle Corporation	0116, 0116.1

Steve Godbehere	None	0117

Stephen Payne	Pet Food Institute	0118

Pamela Peckman	The Industrial Fumigant Company	0119

Nancy Sandrof	American Chemistry Council	0120, 0120.1

Mark Reddick	Reddick Fumigants, Inc.	0121, 0121.1

David Doniger	Natural Resources Defense Council	0122, 0122.1

Miguel Cea	AG-Fume Service, Inc.	0123

Richard Matoian	CA Fig Advisory Board	0124

Michal Mellano	CA Cut Flower Commission	0125

Bruce Houtman	Dow AgroSciences LLC	0132, 0132.1, 0132.2

Craig Weyandt	Florida Golf Course Superintendents Association	0133

David McAllister	Chemtura Corporation	0136

Edward Ruckert	McDermott, Will & Emery for the Crop Protection Coalition
0139

Steve Hensley	USA Rice Federation	0141, 0141.1, 0141.2, 0141.3, 0141.4,
0141.5, 0141.6, 0141.7, 0141.8

Amy Schaffer	Weyerhaeuser Company	0142

Tom Starkey	Southern Forest Nursery Management Coop	0143

Don Stringfield	Tree Improvement	0144

George Lowerts	International Paper	0145

William Goodrich	United Agribusiness League	0146

William Murray	American Forest & Paper Association	0149



Fourteen commenters express concern about the proposal to increase
reliance on existing inventory of methyl bromide.  These commenters
state that the proposed increase in the amount of methyl bromide to come
from inventory is beyond the level approved by the Parties and that an
adequate emergency stockpile must be maintained. [0113, 0116.1, 0117,
0118, 0119, 0120.1, 121, 0124, 0133, 0136, 0142, 0145, 0146, 0149]

Response: In the NPRM, EPA proposed to allocate critical stock
allowances (CSAs) for 2007 critical uses in an amount equal to either
6.2% or 7.5% of the 1991 baseline (25,528,000 kilograms).  In the Final
Rule the Agency is allocating CSAs equal to 7.5% of baseline.  Section
V.G. of the preamble to the Final Rule describes the reasons for this
action. 

Section V.C. of the preamble to the Final Rule also includes options EPA
will consider if the Agency learns of a severe inventory shortage.

Six commenters object to the EPA proposed CUA and CSA amounts because
they incorporate methyl bromide for alternatives research and
development programs into the critical use stock allocations, in
addition to going beyond the requirements of the Parties.  The
commenters also object to the lack of scientific basis for the greater
reliance on inventory than is required. [0120.1, 0136, 0139, 0143, 0144,
0145]  One commenter strongly believes that methyl bromide used for
research purposes should not divert from the amount of methyl bromide
allocated to CUE holders. [0141]

Response: 

Section V.G. of the preamble to the Final Rule describes EPA’s reasons
for allocating 1,914,600 kilograms (7.5% of baseline) of critical use
methyl bromide from inventory.   

Five commenters believe the increased reliance on inventory “puts
critical use sectors in jeopardy” and claim that there is no technical
basis to increase the dependence on inventory at a time when the size of
the methyl bromide stockpile is decreasing.  Further, these commenters
state that EPA made the argument in July 2005 that “the Protocol does
not require the use of existing stockpiles of methyl bromide before new
production and consumption are allowed under the Article 2H critical use
exemption.” [0113, 0118, 0121, 0124, 0136]

Response: EPA is not requiring the use of all existing stockpiles before
allowing new production and consumption. Section V.G. of the preamble to
the Final Rule describes EPA’s reasons for the 2007 CSA amount. 	

Four commenters address the competition between critical users and
non-critical users for stockpiles of pre-phaseout methyl bromide and
state that the competition for these inventories could result in a lack
of methyl bromide availability for critical users. [0118, 0120.1, 0121,
0136]

Response:  In the Framework Rule (69 FR 76982) EPA established the
current system in which only critical users may access newly produced
and imported critical use methyl bromide.  Critical users may also
purchase critical use methyl bromide from inventories from suppliers
that hold critical stock allowances.  However, EPA is aware of the
commenters’ concern that a severe inventory shortage could result in a
lack of methyl bromide availability for critical users.  Previously, EPA
has proposed possible actions in the event of a severe inventory
shortage, but the Agency has not made a final decision about what course
of action it would take.

Section V.G. of the preamble to the Final Rule discusses options EPA may
consider if there is a severe inventory shortage.  “If the Agency is
informed of a severe inventory shortage, [EPA] may consider various
options including, but not limited to, promulgating a final version of
the petition process proposed on October 27, 2005 (70 FR 62030), taking
into account comments received on that proposal; proposing a different
administrative mechanism to serve the same purpose; or authorizing
conversion of a limited number of CSAs to CUAs through a rulemaking,
bearing in mind the upper limit on U.S. production/import for critical
uses.”  EPA is not implementing any of these options in the Final
Rule.

EPA’s concern regarding the potential consequences of a severe
inventory shortage is one of the reasons the Agency sought comment in
the NPRM on whether, in the critical use exemption context, it would be
appropriate to adjust the level of new production and import with the
goal of maintaining a stockpile of some specific duration in order to
sustain non-disruptive management of methyl bromide in the supply chain
as inventories are reduced over time.  EPA has not made a final decision
regarding the management of inventory for a specific duration.  The
preamble to the Final Rule notes that EPA “intends to continue
exploring the issue in future rulemakings, particularly in the context
of the 2008 critical use exemption.”

  

One commenter expresses concern over depleted inventory levels compared
to 2002 estimations, citing a 50% decrease.  The commenter believes that
EPA has underestimated the amount of methyl bromide needed to respond in
the event of an emergency, stating that a 9 month supply would be needed
to bring a currently closed methyl bromide factory back online as
opposed to EPA’s 100 day estimate.  The commenter also believes that
the stock should also be sufficient to alleviate minor supply issues. 
As a result, the commenter asserts that the stockpile should be
increased rather than depleted.  Further, the commenter opposes EPA’s
“alternative CSA proposal” set forth in Table II.b. of the Proposed
Rule on the grounds that there is no scientific basis for the proposed
1,936,302 kg stock allocation. [0116.1]

Response:  In the preamble to the Final Rule EPA notes that the Parties
to the Protocol did not take a decision on an appropriate amount of
inventory for reserve purposes at their 18th Meeting, held during
October 30-November 3, 2006.  Nor has EPA reached any conclusion
regarding what amount might be appropriate.  EPA appreciates the
commenter’s input regarding the amount of time it would take to bring
a currently closed methyl bromide factory back online.  EPA will
continue to explore the appropriate amount of reserve inventory.

EPA’s rationale for proposing to allocate 1,936,302 kg of critical use
methyl bromide from inventory in 2007 is discussed in the preamble to
the Final Rule, and above in this document.  In the final rule, the CSA
calculations were also slightly adjusted in order to reflect exactly
7.5% of baseline.

One commenter states that existing methyl bromide inventory was produced
legally and has no increased impact on the ozone layer.  This commenter
also states that the inventory is needed as a safety net in case the
needs of the market surpass the production sanctioned by EPA. [0117]

Response: The commenter’s conclusion regarding the environmental
effects of existing inventory is addressed in the response to comments
document for the Framework Rule.  EPA has addressed comments regarding
the need for a safety net in the preamble of the final rule.

One commenter states that EPA’s increased reliance on existing
inventory compared to their original allocation in Decision Ex. XVII/9
is inconsistent with their previous actions.  The commenter refers to
the 2005 Allocation rule, for which EPA argued “that the Party’s
allocation should stand as is, stating that the UNEP decision relevant
to the 2005 U.S. Allocation ‘indicates the total amount of the United
States critical use need that should be met from inventory in
2005.’” [0136]

Response: EPA does not agree that proposing to allocate 1,936,302
kilograms (7.5% of 1991 baseline) of methyl bromide from available
inventory is inconsistent with previous Agency actions.  Beginning with
the 2006 CUE allocation, EPA has exercised its discretion to adjust the
portion of critical use methyl bromide to come from exempted production
or import as compared to the portion to come from pre-phaseout inventory
(71 FR 5998).  This continues to be an appropriate means of carrying out
U.S. commitments as expressed in Decisions Ex. II/1 and XVII/9.   

Four commenters argue that the amount of methyl bromide allocated under
the CUE process has not been sufficient to meet grower demand since EPA
and the Montreal Protocol Meeting of the Parties significantly cut the
amount requested by the forest nursery sector.  The commenters believe
that these cuts and the increased reliance and use of methyl bromide
inventory have created market uncertainty, methyl bromide shortages, and
methyl bromide price increases (46% increase for Forest-Nursery seedling
growers).  The commenters also state that the high price of methyl
bromide has resulted in the use of alternative fumigants that have not
been thoroughly tested.  In order to stabilize the cost of methyl
bromide while economical and viable alternatives are identified, the
commenters request that: (a) EPA limit the use of methyl bromide
inventory to the lower amount (1,621,702 kilograms) for the 2007 CUE;
and (b) for the 2008 CUE, EPA and the Department of State try to limit
MBTOC’s requirements to use methyl bromide inventory as part of the
U.S. CUE allocation process. [0106, 0107, 0109, 0110]

Response:  EPA appreciates the commenter’s input regarding the price
of methyl bromide.  The Agency continues to monitor methyl bromide
prices as an indicator of shortages.  EPA’s rationale for proposing to
allocate 1,936,302 kg of critical use methyl bromide from inventory in
2007 is discussed in the preamble to the Final Rule, and above in this
document.

One commenter believes that EPA’s proposal to increase reliance on
inventory “is not consistent with earlier announcements that put these
supplies outside the realm of critical use exemption quotas.” [0123]

Response: EPA has addressed these comments above in this document.

One commenter states that “EPA should not be including the use of
inventory in any of the current or future rulings,” and states that
inventories have dropped dramatically over the past 3 years. [0125]

Response: EPA has addressed this comment above and in the preamble to
the final rule.

Two commenters believe inventory should be only for critical use needs,
and that therefore access to pre-phaseout methyl bromide inventory
should be denied to non-critical users and restricted for critical users
to prevent “double dipping,” as per the Montreal Protocol and
Decisions.  These commenters also believe that although reliance on
inventory in the proposed rule is increased from previous years, the
amount remains too low.  The commenters believe that EPA should
preferentially use the existing stockpiles to support CUEs and not allow
any new production or importation unless the inventory is not sufficient
to meet critical needs. [0122, 0132.1]

Response: EPA has responded to these comments in the preamble to the
final rule.

One commenter states that the preferential use of inventory is per the
Decisions of the Montreal Protocol, and states that the proposal
acknowledges “that the existing inventory is more than adequate to
meet the proposed 6.2-7.5% gap between production/import and
consumption.” [0122]

The second commenter contends that any under-prediction of available
inventory should be corrected by the exchange of critical use
allocations (CUAs) for critical stock allocations (CSAs).  The commenter
states that the utilization of existing inventory first is in accordance
with Decision IX/6.  The commenter believes that the proposed rule
should state that “the retirement of CUAs in exchange for CSAs shall
be required” to prevent any additional methyl bromide production from
adding to available inventory at the end of the control period.  The
commenter believes that this revision would minimize the production of
new ODS while ensuring the availability of methyl bromide for critical
uses. [0132.1]

Response: EPA has responded to comments regarding its interpretation of
Decision IX/6 in previous Federal Register notices and in the Response
to Comments Document for the Framework Rule, available on the docket for
that rule (EPA-HQ-OAR-2003-0230) as well as in the preamble to the 2007
CUE Final Rule.  

In the NPRM, EPA stated that if an inventory shortage occurs, EPA may
consider various options including, but not limited to, promulgating a
final version of the petition process proposed at 70 FR 62030, taking
into account comments received on that proposal; proposing a different
administrative mechanism to serve the same purpose; or authorizing
conversion of a limited number of CSAs to CUAs through a rulemaking,
bearing in mind the upper limit on U.S. production/import for critical
uses (71 FR 38339).  EPA is not implementing any of these options in
this Final Rule.  

With regard to the commenter’s concern regarding carryover of newly
produced amounts, all carry-over methyl bromide that was produced or
imported under the critical use exemption in 2005 was reported to EPA in
2006 and the total allowable level of new production/import in 2007 has
been reduced accordingly.  This is an effective means of minimizing
production of new ODS while ensuring the availability of methyl bromide
for critical uses.  

6.b.  Proposed Strategic Inventory

Commenter	Organization	Document ID Number

Betsy Peterson	CA Bean Shippers Association	0113

Steve Godbehere	None	0117

Stephen Payne	Pet Food Institute	0118

Nancy Sandrof	Methyl Bromide Industry Panel of the American Chemistry
Council	0120, 0120.1

Mark Reddick	Reddick Fumigants, Inc.	0121, 0121.1

Richard Matoian	CA Fig Advisory Board	0124

Michal Mellano	CA Cut Flower Commission	0125

David McAllister	Chemtura Corporation	0136

Amy Schaffer	Weyerhaeuser Company	0142

William Murray	American Forest & Paper Association	0149



Six commenters agree with EPA’s suggested one-year stockpile standard
as a minimum. [0117, 0118, 0120.1, 0121, 0124, 0136]

Two of these commenters state that a strategic reserve large enough to
supply at least 12 months of U.S. demand amounts to 8,800,000 kilograms
or 19.4 million pounds, based on 2005 usage, which constitutes 34% of
the 1991 baseline. [0120.1, 0136]  

Three commenters state that the one-year stockpile should be a minimum
standard because the time frame is based on the standard used in the
“essential use program” for CFCs and unlike alternatives to other
ozone depleting substances, alternatives to methyl bromide are not
universally effective in all geographic locations, even on the same
crop, because of the large number of variables involved.  The commenters
also state that unexpected, sudden emergencies may also be more
difficult to predict for methyl bromide due to the range and
unpredictability of potential causative conditions. [0118, 0121, 0136]

Five commenters favor a one-year strategic inventory, and propose that
EPA should define one-year inventory as the amount requested in the 2005
CUN (i.e., 39% of the 1991 baseline or 24.2 million pounds).  The
commenters argue that this amount of inventory provides a reasonable
margin necessary to address unexpected circumstances [0113, 0117, 0118,
0121, 0124]

Two commenters suggest a 24 month inventory to maintain non-disruptive
management. [0142, 0149]

One commenter supports the concept of applying a “strategic-reserve”
approach to the critical use exemption program in order to mitigate a
potential failure at the single methyl bromide production facility in
the U.S. and to support unforeseen demand increases, but requests more
information on how EPA would implement it in order to provide detailed
comments. [0120.1]

One commenter believes that the strategic reserve of methyl bromide
should be preserved at the current levels. [0125]

Response: As the preamble to the Final Rule states, EPA has not reached
any conclusion regarding what amount of methyl bromide would be
appropriate to maintain as a strategic inventory.  The Agency intends to
continue exploring the issue in future rulemakings, particularly in the
context of the 2008 critical use exemption.

While commending EPA for thinking strategically about the risks of
inadequate CUE allocations, three commenters are of the opinion that
establishing an emergency access procedure is the wrong solution since
there is no effective mechanism in the Protocol to provide for emergency
uses due to a natural disaster.  The commenters state that the EPA
should instead allocate production allowances for the full CUE approved
by the Parties in Decision XVII/9. [0118, 0121, 0136]

Response:  In the preamble to the Final Rule EPA discussed options that
it could take in the event of a severe inventory shortage.  An emergency
use exemption is contemplated in Decision IX/7 to the Montreal Protocol,
but EPA has not issued regulations implementing such an exemption.

For reasons discussed in the preamble to the Final Rule and above in
this document, EPA is allocating 4,316,055 kilograms of critical use
methyl bromide for new production and import in 2007, with 1,914,600
kilograms of critical use methyl bromide from existing inventory.

6.c.  Accounting for Inventory and Disclosure of Inventory Information

Commenter	Organization	Document ID Number

David Doniger	Natural Resources Defense Council	0122, 0122.1



One commenter states that EPA has failed to account for inventory, as it
is required to do under the Montreal Protocol.  Specifically, the
commenter states that EPA will not disclose and account for the pre-2005
stockpile.  The commenter states that the proposed rule does not comply
with the requirements of Decisions KVII/9, ¶5 to comply with Decision
IX/6 and to account for inventory.  Additionally, the commenter asserts
that “EPA has undertaken no assessment of how much of the purported
critical need could be met with inventory,” though “Decision IX/6
¶1(b)(ii) permits new production and consumption of methyl bromide only
if it is not available in sufficient quantity and quality from existing
inventory of banked or recycled methyl bromide.”  This commenter
believes that inventory increased in 2003 and that much of this amount
remains. [0122]

Response: After publication of the NPRM (71 FR 38325) in July 2006, EPA
released information on the pre-phaseout aggregate inventory at the end
of 2003, 2004 and 2005, which is available on the docket for this
action.  EPA has addressed the issues the commenter raises in the
preamble to the Final Rule.  

One commenter is concerned that some of the existing 29 inventory
holders may be attempting to evade EPA’s reporting procedures for
inventory by “transferring the legal title to previously reported
inventory to other entities, presumably entities that will ultimately
use those inventories.”  The commenter suggests that EPA could broaden
its Section 114 information gathering to ensure that it accounts for all
inventories subject to Decision IX/6, thereby avoiding any “subterfuge
of shifting ownership.” [0122]

Response: EPA receives comprehensive annual data reports on inventories
of methyl bromide from over 30 companies that produce, import,
distribute or apply methyl bromide. Pursuant to reporting requirements
at 40 CFR 82.13, producers, importers, distributors, and applicators are
required to report the amount of inventory that they own, as well as the
amount that they hold on behalf of another entity.  EPA is not aware of
circumstances in which a presumed end-user has sold its inventory of
methyl bromide.  Therefore, the Agency believes it is aware of virtually
all existing inventories, and would be interested in any substantive
information the commenter possesses suggesting that this is not the
case. 

7.  Summary of Comments Relating to RULEMAKING AND THE REGULATORY
PROCESS

Commenter	Organization	Document ID Number

Betsy Peterson	CA Bean Shippers Association	0113

None	Albemarle Corporation	0116, 0116.1

Steve Godbehere	None	0117

Stephen Payne	Pet Food Institute	0118

Pamela Peckman	The Industrial Fumigant Company	0119

Nancy Sandrof	American Chemistry Council	0120, 0120.1

Mark Reddick	Reddick Fumigants, Inc.	0121, 0121.1

David Doniger	Natural Resources Defense Council	0122, 0122.1

Richard Matoian	CA Fig Advisory Board	0124

Michal Mellano	CA Cut Flower Commission	0125

Marcy Martin	CA Grape & Tree Fruit League	0126

Bruce Houtman	Dow AgroSciences LLC	0132, 0132.1, 0132.2

David McAllister	Chemtura Corporation	0136

Edward Ruckert	McDermott, Will & Emery for the Crop Protection Coalition
0139

Steve Hensley	USA Rice Federation	0141, 0141.1, 0141.2, 0141.3, 0141.4,
0141.5, 0141.6, 0141.7, 0141.8

Amy Schaffer	Weyerhaeuser Company	0142

George Lowerts	International Paper	0145

William Murray	American Forest & Paper Association	0149

Gene Harrington	NPMA	0150



Fourteen commenters object to EPA’s decision to reduce the total level
of new production and import for critical uses by 443,000 kilograms to
reflect the total level of carry-over material available at the end of
2005. They contend that the 2005 carry-over quantity was primarily
attributable to EPA’s promulgating the supplemental CUEs in December,
2005 which did not allow enough time to use the issued critical use
methyl bromide before the end of the year. They state it is unfair to
penalize stakeholders for EPA’s inability to promulgate regulations in
a timely manner. [0113, 0116.1, 0118, 0119, 0120.1, 0121, 0124, 0125,
0126, 0136, 0139, 0141, 0149, 0150]  

Response: EPA has addressed these comments in Section V.C. of the
preamble to the Final Rule.

Two of these commenters also state that the delay in finalizing the CUEs
for 2006 forced distributors to carry over some critical use methyl
bromide from 2005 to meet early orders. [0120.1, 0116.1]  

Response: EPA has addressed these comments in Section V.C. of the
preamble to the Final Rule.

Additionally, one commenter believes that since 2005 was the first year
of implementation of the CUE program, systems of ordering, distributing
and selling critical use methyl bromide were not up and running from
January 1, the date the framework rule took effect. The commenter states
that since the Final Rule was not published until December 23, 2004,
producers, importers, and distributors of methyl bromide did not have
sufficient time to implement the details of the rule before the calendar
year started. The commenter thus urges the EPA to suspend the carry-over
reduction for this first year. [0120.1]

Response: EPA has addressed these comments in Section V.C. of the
preamble to the Final Rule.

This commenter further contends that this unfairly penalizes producers,
importers and distributors of methyl bromide who had no carry-over
inventory in 2005 since the reduction applies to all allocations in
2005.  The commenter states that those entities that had a carry-over
inventory in 2005 are “rewarded” since they not only have the
carry-over amount but also have a portion of the 2007 allocation. The
commenter recommends that the EPA should apply a reduction on a
company-specific basis – i.e. the reduction should be equal to the
reported carry-over by the company – rather than on 1991 baseline
market shares. [0120.1]

Response: EPA proposed and finalized an across-the board approach for
deducting carry-over amounts in the Framework Rule, stating that “EPA
is creating a system for deducting the amount of unused methyl bromide
from the total number of allowances” (69 FR 76997).  Based on comments
and other feedback the Agency has received, EPA does not anticipate a
significant amount of carry-over of methyl bromide in future years. 
Therefore, EPA is not planning to revisit the across-the-board approach
at this time.  

One commenter states that the delayed 2005 supplemental allocations not
only granted requests for additional amounts of methyl bromide, but also
added six critical uses that had been authorized by the Parties at their
16th meeting in November 2004.  These uses were allocated no critical
use methyl bromide for 2005 prior to December. [0136]

Response: The Agency is making a strong effort to finalize allocation
rules earlier in each calendar year to avoid the type of complications
that the commenter describes.

Two commenters state that there are many reasons why methyl bromide may
not be used in a given year that do not entail a reduction of allocation
in following years.  These situations include lower than expected
pathogen loads, crop production changes, and other short term decisions.
[0142, 0149]

Response:   As discussed in the preamble to the Final Rule, EPA is
deducting the amount of unused methyl bromide from the total number of
allowances for new production and import issued for the control period
following the control period immediately after the control period when
the methyl bromide was unused for critical uses.  This approach does not
reduce the amount of total methyl bromide available to critical users
based on lower than anticipated methyl bromide use in previous years. 
Following a year when methyl bromide use was less than anticipated, the
amount of methyl bromide available to critical users is still determined
by the critical use allocation process and not the amount of unused
methyl bromide in previous years.  Unused methyl bromide only affects
the proportion of critical use methyl bromide from new production and
import versus post-phaseout inventory.

Five commenters state that it is inappropriate for the EPA to revisit
the technical analysis contained in the 2007 CUN at this late stage in
the allocation process. They state that revisiting the 2007 CUN analysis
ignores the fact that the Parties have already authorized the quantity
of methyl bromide for 2007 and new developments from the time when the
critical use community prepared its application season have already been
incorporated into the Party-approved numbers. [0113, 0117, 0118, 0121,
0136]

Response: EPA does not agree that new developments have in all cases
been incorporated into the numbers approved by the Meeting of the
Parties.  For example, in the NPRM EPA sought information regarding
changes to the registration or use of alternatives that may have
transpired after the 2007 U.S. nomination was completed.  Such
information has the potential to alter the technical or economic
feasibility of an alternative and could thus prompt EPA to modify its
analysis of which uses and what amounts of methyl bromide qualify for
the critical use exemption.  EPA strives to use the best available
information in its analyses and rulemakings.

Four commenters suggest that the EPA should move to a three-year CUE
cycle instead of the current annual one to reduce the administrative
burden and improve timeliness in the allocation process. [0113, 0117,
0125, 0145]

Response: The United States Government has argued for multiple-year
exemptions, but to date other Parties to the Montreal Protocol have not
agreed to this approach.  As a result, critical use exemptions are
currently nominated, authorized and allocated on an annual basis.

One commenter expresses concern that the CUE process has become time and
resource intensive for stakeholders, especially for small users. [0113]

Response: EPA remains sympathetic to the commenter’s concerns about
the time and resource burden on small CUE applicants.  For similar
reasons, EPA allowed recipients of very small amounts of critical stock
allowances, on a voluntary basis, to permanently relinquish their
allowances.  While EPA did not receive any comments or responses to this
portion of the NPRM, EPA may consider re-proposing this option in future
rulemakings.  EPA will continue to strive to balance the need for
thorough CUE applications, with concerns about time and resource
burdens.  However, as stated in the Final Rule, EPA is not revising the
2007 CUE analysis at this time.  

Two commenters state that the downward adjustment of the amount of
critical use methyl bromide in 2007 attributable to new production or
importation was made by EPA and USDA without the full involvement of
each affected applicant. [0126, 0139]

Response:   In the NPRM, EPA proposed to allocate critical stock
allowances (CSAs) for 2007 in an amount equal to either 6.2% or 7.5% of
the 1991 baseline (25,528,000 kilograms) and sought comment on this
proposal.  In the Final Rule, the Agency is allocating CSAs equal to
7.5% of baseline (1,914,600 kilograms).  Section V.G. of the preamble to
the Final Rule describes the reasons for this action.  EPA considered
all of the comments relevant to this decision.  As discussed in the
preamble to the Final Rule and in this document, the comments EPA
received regarding the amount of methyl bromide from new production and
import were diverse in their opinions.  For example, some commenters
wanted all critical use methyl bromide to come from inventory with no
new production and import, while other commenters would like
substantially more new production and import than EPA is allocating.  As
discussed in the Final Rule, EPA’s decision was made in light of the
comments received as well as EPA’s obligations and commitments under
the Clean Air Act and the Montreal Protocol.

One commenter believes that EPA violates Decision IX/6 on multiple
fronts:

The commenter states that by arguing that it is bound to only paragraph
1 of Decision IX/6 and is free to ignore the conditions imposed in
subsequent paragraphs of the same Decisions, EPA has exhibited a partial
“pick and choose” compliance.  Referencing Clean Air Act section
604(d)(6), the commenter contends that EPA does not have the discretion
to refashion the Parties’ Decisions by disregarding the later
paragraphs and the conditions they impose. 

Response: EPA has addressed these and similar comments in the Preamble
of the Final Rule, the Response to Comment Documents for the Framework
Rule and the 2006 CUE Rule, and in previous Federal Register notices. 
EPA is not disregarding any Decision language: the commenter simply
disagrees with EPA’s interpretation of certain language.

In relation to the initial 2005 CUE Rulemaking, one commenter contends
that in spite of a clear obligation to abide by Decision IX/6’s
conditions, EPA issued the original 2005 exemptions in December 2004
without any assessment of compliance with the Decision IX/6 criteria as
set forth in paragraph 5 of Decision Ex. I/3.  Specifically, the
commenter argues, EPA failed to comply with the following requirements: 

-to disclose and account for methyl bromide inventory, 

-to prevent non-critical users from using such inventory and to prevent
critical users from “double-dipping” – using both inventory and
new production in amounts that exceed their approved critical use needs,


-to reduce new production and consumption to only the minimum amount
needed to service critical uses after accounting for inventory, and 

-to restrict critical uses to the minimum amount that reflects the use
of all technologically and economically feasible alternatives.

Additionally, this commenter contends that in relation to the
supplemental 2005 CUE Rulemaking, by proposing to authorize a further
611 metric tons of critical stock allowances for supplemental critical
uses in 2005, the EPA failed to comply with Decisions XVI/2 and IX/6.

This commenter further objects to the proposed “advance” approval of
supplemental critical uses.  The commenter believes that domestic
approval should not be granted without full review and approval in a
Decision of the Parties.  The commenter believes that any such decision
is likely to require subsequent second reviews to assure compliance with
Decision IX/6 conditions and allow the public to comment on EPA’s
proposed result. [0122]

Response: EPA has addressed the commenter’s arguments in the Preamble
to the Final Rule. The Response to Comment Documents for the Framework
Rule and the 2006 CUE Rule, available on the docket for that rule
(EPA-HQ-OAR-2003-0230) and in previous Federal Register notices. .  

Two commenters believe that EPA should publish a proposed allocation
rule based on the amount of methyl bromide contained in the U.S.
nomination to the Parties rather than after the Parties have finalized
the CUE amount to be granted to the U.S.  The commenters believe that
this would allow the public to comment earlier on in the process and
allow EPA to issue a Final Rule allocation in a more timely manner.
[0139, 0141]

Response: EPA appreciates the commenter’s suggestion and will continue
to consider a variety of approaches to issuing final CUE allocation
rules in a timely manner.

One commenter recommends that EPA:

Utilize all available information at the time of allocation to minimize
the continued U.S. reliance on methyl bromide.  This should also include
updates to conclusions based on old data since in many cases, estimates
of yield losses are based on old data.  

Recognize that in the three years that it usually takes to complete the
CUE process, there can be dramatic, dynamic changes in the status of
methyl bromide and the potential alternatives. New technologies, product
registrations, conditions of “re-registration,” and the
implementation of local, state, or federal restrictions on either methyl
bromide or alternatives can have a profound effect on the capacity of
alternatives to serve as a viable replacement. The commenter thus
encourages EPA to seek new information on a regular, ongoing basis.

Response: EPA strives to use the best available information in its
analyses.  EPA sought comment on any information regarding changes to
the registration or use of alternatives that may have transpired after
the 2007 U.S. nomination was written.  Such information has the
potential to alter the technical or economic feasibility of an
alternative and could thus cause EPA to modify the analysis that
underpins EPA’s determination as to which uses and what amounts of
methyl bromide qualify for the critical use exemption.  While EPA is not
revising the technical analysis at this time due to the lack  of new
information regarding the registration or use of alternatives, EPA will
continue to consider such information in future rulemakings.  

Provide incentives to private industry to further develop and refine
viable alternatives to methyl bromide and to consumers to utilize these
alternatives.

Response: EPA believes that the phase-out of methyl bromide, except for
critical uses, provides incentives for private industry to utilize
alternatives.  In addition, the United States Government continues to
support research and adoption of alternatives.

Utilize information presently available to EPA to require that all
existing inventory of methyl bromide and the amounts left over from the
2005 CUE process are utilized prior to authorizing the production of new
volumes.  In this context, the commenter cites the Section 114 “data
call-in” [information request] issued by EPA. [0132.1]

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  for the Framework and 2006 CUE rules, in prior Federal Register
notices, and in the Preamble of the Final Rule.  EPA is deducting 2005
carryover amounts in the 2007 allocation.  

One commenter requests that EPA be more transparent in its calculation
processes.  The commenter states last year’s miscalculation of
critical use allowances for post-harvest uses by 20% as a basis for the
request. [0150]

Response:   Consistent with previous years, EPA has made its
calculations available on the docket in a spreadsheet entitled Allowance
Allocations Docket Final (  HYPERLINK
"http://www.regulations.gov/fdmspublic/custom/jsp/search/searchresult/do
cketDetail.jsp" \l "#" \o "EPA-HQ-OAR-2005-0538-0054" 
EPA-HQ-OAR-2005-0538-0054 ).

 Methyl Bromide Industry/Government Working Group, “Canada’s Process
and Criteria for the Evaluation of Exemptions for Critical and Emergency
Uses of Methyl Bromide,”
http://www.ec.gc.ca/ozone/DOCs/SandS/mbr/EN/EX/index.cfm#FN2, Accessed
November 13, 2006

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