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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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