1.
Amount
from
Stocks
EPA
is
allowing
up
to
1,283,214
kilograms
of
methyl
bromide
from
inventories
stockpiled
before
the
phaseout
date
of
January
1,
2005
to
be
sold
for
approved
critical
uses.
In
evaluating
the
issue
of
what
amount
of
the
critical
use
level
for
2005
should
be
met
from
stocks,
EPA
considered
comments
received
and
the
following
statements
in
Decision
Ex
I/
3.
Decision
Ex
I/
3(
1)
permits
a
level
of
production
and
consumption
equal
to
30%
of
the
1991
baseline
and
establishes
an
agreed
critical
use
level
equal
to
35%
of
the
1991
baseline.
With
regard
to
drawdown
from
existing
inventory,
Decision
Ex
I/
3(
2)
states:
"
That
a
Party
with
a
critical­
use
exemption
level
in
excess
of
permitted
levels
of
production
and
consumption
for
critical
uses
is
to
make
up
any
such
difference
between
those
levels
by
using
quantities
of
methyl
bromide
from
stocks
that
the
Party
has
recognized
to
be
available."
The
availability
of
stocks
is
also
addressed
in
Decision
Ex
I/
3(
5),
which
states:
"
That
each
Party
which
has
an
agreed
critical
use
should
ensure
that
the
criteria
in
paragraph
1
of
decision
IX/
6
are
applied
when
licensing,
permitting
or
authorizing
the
use
of
methyl
bromide
and
that
such
procedures
take
into
account
available
stocks."
Additional
references
to
Decision
IX/
6
appear
in
preambular
language
("
Mindful
that
exemptions
must
fully
comply
with
decision
IX/
6
.
.
.
",
"
Mindful
also
that
decision
IX/
6
permits
the
production
and
consumption
of
methyl
bromide
for
critical
uses
only
if
it
is
not
available
in
sufficient
quantity
and
quality
from
existing
stocks
of
banked
or
recycled
methyl
bromide."
In
order
to
comply
with
Decision
Ex.
I/
3,
EPA
must
first
and
foremost
remain
consistent
with
Paragraph
(
3)
of
that
Decision,
which
states
that
a
Party
"
shall
prohibit"
the
use
of
stocks
when
the
usage
of
stocks
combined
with
production
and
consumption
exceeds
the
total
level
of
critical
uses
agreed
to
by
the
Parties,
and
with
Paragraph
(
2),
which
states
that
a
Party
with
a
use
exemption
exceeding
allowable
production
and
consumption
"
is
to
make
up"
any
such
difference
by
using
stocks
recognized
to
be
available.
Additionally,
Paragraph
(
5)
of
Decision
Ex.
I/
3
states
that
Parties
should
ensure
that
Decision
IX/
6'
s
criteria
are
applied,
and
Decision
IX/
6
states
that
production
and
consumption
should
not
be
permitted
where
stocks
are
recognized
to
be
available.
Taking
into
account
the
desire
to
comply
with
the
language
of
Decision
Ex.
I/
3'
s
first
three
Paragraphs,
and
the
fact
that
the
fifth
Paragraph
and
Decision
IX/
6
are
hortatory,
EPA
concludes
that
the
appropriate
level
of
stocks
is
set
forth
in
Decision
Ex.
I/
3(
1),
which
establishes
a
critical
use
level
of
35%
but
permits
production
and
consumption
of
only
30%.
Paragraph
(
1)
of
Decision
Ex.
I/
3,
read
in
conjunction
with
paragraph
(
2)
of
the
same
Decision,
specifies
the
amount
of
the
critical
use
level
for
2005
that
should
be
met
from
stocks.
Paragraph
(
1)
establishes
a
critical
use
level
of
35%
of
baseline
but
permits
production
and
consumption
of
only
30%.
Paragraph
(
2)
explains
that
the
difference
is
to
made
up
by
using
available
stocks.
In
other
words,
the
amount
of
the
United
States'
2005
critical
use
level
that
should
be
met
from
stocks
is
1,283,214
kilograms,
i.
e.,
an
amount
equivalent
to
5%
of
baseline.
EPA's
conclusion
accords
with
both
the
preambular
language
quoted
above
(
which
explains
why
the
Decision
permits
a
level
of
production
and
consumption
that
is
less
than
the
critical
use
level)
as
well
as
Paragraph
(
5)
of
Decision
Ex.
I/
3.
That
Paragraph
requests
each
Party
with
an
agreed
critical
use
to
take
into
account
available
stocks
when
authorizing
the
use
of
methyl
bromide.
Given
the
language
in
Paragraphs
(
1)
and
(
2)
of
Decision
Ex.
I/
3,
EPA
interprets
Paragraph
(
5)'
s
language
as
meaning
that
the
U.
S.
should
not
authorize
critical
use
exemptions
without
including
provisions
addressing
drawdown
from
stocks
for
critical
uses.
EPA
is
acting
consistently
with
Paragraph
(
5)
by
establishing
requirements
governing
the
sale
of
pre­
phaseout
inventories
for
approved
critical
uses.
In
section
V.
F
of
today's
rulemaking,
EPA
describes
the
mechanism
by
which
the
Agency
is
allowing
stocks
of
methyl
bromide
to
be
sold
for
approved
critical
uses.
In
addition,
EPA
is
taking
into
account
stocks
through
the
trading
provisions
outlined
in
section
__
of
today's
rulemaking,
which
allow
critical
use
allowances
to
be
converted
into
critical
stock
allowances.
EPA
had
proposed
to
undertake
an
independent
analysis
of
the
amount
to
come
from
stocks
and
to
adjust
the
authorized
level
of
new
production
and
consumption
for
critical
uses
by
the
amount
of
"
available"
stocks
determined
through
this
analysis.
The
information
EPA
used
to
quantify
this
approach
was
elaborated
in
the
NPRM
and
also
in
a
Technical
Support
Document
that
can
be
obtained
from
the
rulemaking
docket.
In
the
NPRM,
EPA
also
sought
comment
on
an
alternative
approach:
"
For
the
2005
calendar
year,
the
Agency
could
make
a
determination
that
the
amount
of
methyl
bromide
available
from
existing
stocks
is
simply
based
on
the
difference
between
the
limit
on
methyl
bromide
for
critical
uses
(
8,942
metric
tons)
and
the
limit
on
new
production
and
import
(
7,659
metric
tons)
in
the
Decision
Ex.
I/
3."
69
FR
52375.
This
is
essentially
the
approach
adopted
in
today's
final
rule.
EPA
is
clarifying,
however,
that
Decision
Ex.
I/
3
specifies
the
amount
of
the
critical
use
level
to
be
met
from
stocks.
EPA
received
10
comments
on
the
methodology
for
determining
available
stocks.
Five
comments
in
favor
of
the
methodology
and
nine
comments
suggesting
refinements
to
the
methodology.
However,
since
EPA
is
not
using
the
methodology
to
determine
available
stocks
but
is
instead
accepting
the
Parties'
determination,
the
Agency
is
not
responding
to
the
details
of
the
comments
in
today's
rulemaking.
One
commenter
stated
that
EPA
should
use
a
"
mathematical"
approach,
under
which
the
amount
from
stocks
would
equal
the
different
between
the
limit
on
methyl
bromide
for
critical
uses
and
the
limit
on
new
production
and
import.
EPA
believes
that
the
approach
adopted
in
this
final
rule
is
consistent
with
these
commenters'
recommendation.
Two
commenters
stated
that
all
stocks
must
be
used
before
any
new
production
is
permitted
and
that
all
stocks
other
than
those
for
export
to
developing
countries
should
be
considered
"
available"
for
critical
uses.
One
commenter
refers
to
Decision
IX/
6,
paragraph
(
1)(
b),
in
which
the
Parties
agreed:
"
That
production
and
consumption,
if
any,
of
methyl
bromide
for
critical
uses
should
be
permitted
only
if:
.
.
.(
ii)
Methyl
bromide
is
not
available
in
sufficient
quantity
and
quality
from
existing
stocks
of
banked
or
recycled
methyl
bromide,
also
bearing
in
mind
the
developing
countries'
need
for
methyl
bromide."
EPA
does
not
believe
that
this
is
an
accurate
characterization
of
Decision
IX/
6
as
it
relates
to
Decision
Ex.
I/
3.
Paragraph
2
of
Decision
Ex.
I/
3
states
that
a
Party
"
is
to
make
up"
the
difference
between
an
agreed
use
level
and
production
and
consumption
"
from
stocks
that
the
Party
has
recognized
to
be
available."
Moreover,
Decision
IX/
6
asks
Parties
to
permit
production
and
consumption
where
"
methyl
bromide
is
not
available
in
sufficient
quantity
and
quality
from
existing
stocks
of
banked
and
recycled
methyl
bromide,
also
bearing
in
mind
the
developing
countries'
need
for
methyl
bromide."
Both
of
these
statements
contemplate
the
possibility
that
available
stocks
could
be
less
than
existing
stocks.
Moreover,
the
United
States
and
other
countries
have
interpreted
identical
decisional
language
in
the
essential
use
exemption
context
not
to
require
the
use
of
all
existing
stocks,
and
Decision
Ex.
I/
3'
s
consideration
of
stocks
is
consistent
with
this
interpretation.
In
addition,
EPA
disagrees
with
the
commenter's
assumption
that
all
stocks
that
are
not
specifically
designated
for
export
to
developing
countries
are
available
for
critical
uses.
For
example,
there
may
be
stocks
in
the
U.
S.
produced
specifically
for
quarantine
and
pre­
shipment
uses
or
stocks
held
on
behalf
of
another
entity
for
a
non­
critical
use
during
their
transition
to
alternatives.
In
addition,
the
U.
S.
is
a
global
supplier
of
methyl
bromide
and
existing
inventories
may
be
tagged
for
critical
uses
in
other
developed
countries.
