U.S. Methyl Bromide Phase Out

1. How did the U.S. Congress change the Clean Air Act to effect the methyl bromide phase out in the United States?
   In October 1998, the U.S. Congress attached an amendment to the Fiscal Year 1999 (FY99) Appropriations bill which makes specific changes to the Clean Air Act. The amendment will require that the EPA make regulatory changes to the U.S. phase out of methyl bromide, that will essentially "harmonize" the U.S. phaseout of methyl bromide with the Montreal Protocol phaseout schedule for developed countries. This will result in the following schedule:
   
   • 25% reduction in 1999
   • 50% reduction in 2001
   • 70% reduction in 2003
   • 100% reduction in 2005
   • Preshipment and quarantine uses exempt
   • Critical and emergency uses allocated after 2005
   (U.S. methyl bromide production and importation reductions from 1991 levels)
   
   
2. What was the U.S. phase out like before Congress took action in 1998?
   On December 10, 1993, under the authority of the Clean Air Act, the EPA put forth regulations that prohibited the production and import of methyl bromide after January 1, 2001 (58 FR 65018). In addition, this regulatory action froze U.S. production in 1994 at 1991 levels.
   EPA based this action on two critical elements
   - existing U.S. law, and science.
   At that time, the U.S. Clean Air Act required EPA to take action on any substance with an Ozone Depelting Potential (ODP) of 0.2 or greater by listing it as class I substance, and phasing it out in the United States within seven years. In 1992, atmospheric scientists had reached a global concensus that methyl bromide depletes stratospheric ozone, with evidence estimating that bromine from this material is 50 times more effective at destroying ozone than chlorine from CFCs on a per atom basis. The Ozone Depletion Potential of methyl bromide at that time was 0.7.
   
   
   
3. What exactly are the 1998 changes to the Clean Air Act?
   
   Sec. 764. (a) Section 604 of the Clean Air Act is amended by inserting at the end the following:
   
   ``(h) Methyl Bromide.--Notwithstanding subsection (d) and section 604(b), the Administrator (of the U.S. Environmental Agency) shall not terminate production of methyl bromide prior to January 1, 2005. The Administrator shall promulgate rules for reductions in, and terminate the production, importation, and consumption of, methyl bromide under a schedule that is in accordance with, but not more stringent than, the phaseout schedule of the Montreal Protocol Treaty as in effect on the date of the enactment of this subsection.''.
   
   (b) Section 604(d) of the Clean Air Act is amended by inserting at the end the following:
   
   ``(5) Sanitation and food protection.--To the extent consistent with the Montreal Protocol's quarantine and preshipment provisions, the Administrator shall exempt the production, importation, and consumption of methyl bromide to fumigate commodities entering or leaving the United States or any State (or political subdivision thereof) for purposes of compliance with Animal and Plant Health Inspection Service requirements or with any international, Federal, State, or local sanitation or food protection standard.
   
   ``(6) Critical uses.--To the extent consistent with the Montreal Protocol, the Administrator, after notice and opportunity for public comment, and after consultation with other departments or institutions of the Federal Government have regulatory authority related to methyl bromide, including the Secretary of Agriculture, may exempt the production, importation, and consumption of methyl bromide for critical uses.''.
   
   (c) Section 604(e) of the Clean Air Act is amended by inserting at the end the following:
   
   ``(3) Methyl bromide.--Notwithstanding the phaseout and termination of production of methyl bromide pursuant to section 604(h), the Administrator may, consistent with the Montreal Protocol, authorize the production of limited quantities of methyl bromide, solely for use in developing countries that are Parties to the Copenhagen Amendments to the Montreal Protocol.''.
   
   More information can be found at the U.S. Library of Congress, Thomas Legislative Information web site.
   
   
   
   
4. What is the Montreal Protocol? How does it regulate methyl bromide?
   The Montreal Protocol is an international treaty developed to protect the earth from the detrimental effects of ozone depletion. Since it was begun in the late 1980's, it has been signed by over 160 countries ("Parties" to the Treaty), and controls the production and trade of ozone depleting substances on a global basis. This Treaty is now phasing out the CFCs and other ozone depleting compounds on a world-wide basis.

   In 1992, the Parties to the Montreal Protocol considered the science on methyl bromide, and listed it as an ozone depleting substance with an ODP of 0.7. The Parties also agreed to freeze production in 1995 at 1991 levels, and to study the matter further.

   At the 1995 meeting of the Parties, which took place in Vienna Austria (November 27 - December 7, 1995), global methyl bromide controls were added to the treaty, including a phase out for industrial nations in 2010, and a freeze in 2002 based upon an average of the years 1995-1998 for developing nations.

   At the 1997 Ninth Meeting of the Parties to the Montreal Protocol (held in Montreal, Canada, 15-17/9/97), global controls (reductions in consumption) for methyl bromide were accelerated for developed (industrialized) countries: 25% in 1999, 50% in 2001, 70% in 2003, and 100% in 2005 (based on 1991 consumption levels which were frozen in 1995). For developing (non-industrialized) countries: 20% in 2005 and 100% in 2015 (based on an average of 1995-1998 consumption levels which will be frozen in 2002).

   For clarification, under the control measures of the Montreal Protocol, "consumption" is defined as production plus imports minus exports.

   Find out more about the Montreal Protocol.

   
   
   
5. So this means that the U.S. farmers will have access to some methyl bromide until 2005 -- what happens then?
   After 2005 methyl bromide production and importation will be halted, with the exception of amounts needed for preshipment and quarantine uses, as well as what is deemed necessary for critical and emergency uses.
   
   
   
6. How will methyl bromide be allocated to users during the phase out?
   With the execption of the quarantine and preshipment exemptions, EPA will not control methyl bromide uses during the phase out -- only supply. The natural forces of the market place will define allocations to methyl bromide users. It's likely that the price will rise as supply declines and demand remains stable. As 2005 approaches and less methyl bromide is available, it is expected that only those users with no effective or economically viable alternatives will compete for the remaining amounts.
   
   
   
7. What about the environmental impact of this action? Won't such a delay cause additional ozone depletion when this fragile layer is most vulnerable?
   While a harmonized schedule does allow the use of methyl bromide after 2001, the amounts allowed will be declining, and thus this action will continue to protect the ozone layer and the health and environment of the American people. This action will help address the need of American farmers by maintaining availability of methyl bromide for a few more years as effective alternatives now in the research and development stage can be implemented at the on-farm level.
   
   
   
8. Now that Congress has made this change, what happens next?
   The EPA put forth regulations to achieve a 25% production and importation reduction in 1999, and on November 28, 2000, published regulations for a 50% reduction in 2001, 70% reduction in 2003 and 100% reduction in 2005 (from 1991 base-line levels). EPA is also collaborating with USDA, state agricultural departments and other stakeholders to define preshipment and quarantine uses to be exempted from the phase out, and how methyl bromide will be allocated for such uses. EPA will next be working with appropriate stakeholders on critical and emergency use exemptions (which will be available after 2005). See more about these exemptions below.
   
   
9. When will EPA publish a rulemaking regarding quarantine and preshipment exemptions from this phaseout?
   EPA intends to propose regulations conforming exemptions from the U.S. methyl bromide phaseout schedule for quarantine and preshipment uses with obligations under the Montreal Protocol and with the recent changes to the Clean Air Act. We plan to publish a proposal that will delineate a process for exempting quantities of methyl bromide used in the U.S. for quarantine and preshipment from the reduction steps in the phaseout schedule by early 2001.
   
   
10. What about the specifics of the quarantine and preshipment exemption?
    EPA is currently engaged in finalizing the regulation to implement this exemption in the United States. Guidance for the regulation is derived from both the amended Clean Air Act, and the Montreal Protocol.
    Here is the language from the amended Clean Air Act:
    ``(5) Sanitation and food protection. -- To the extent consistent with the Montreal Protocol's quarantine and preshipment provisions, the Administrator shall exempt the production, importation, and consumption of methyl bromide to fumigate commodities entering or leaving the United States or any State (or political subdivision thereof) for purposes of compliance with Animal and Plant Health Inspection Service requirements or with any international, Federal, State, or local sanitation or food protection standard.
    Here is the language from the Montreal Protocol:
    Decision VII/5. Definition of quarantine applications of methyl bromide...
    (a) "Quarantine applications", with respect to methyl bromide, are treatments to prevent the introduction, establishment and/or spread of quarantine pests (including diseases), or to ensure their official control, where:
    (i) Official control is that performed by, or authorized by, a national plant, animal or environmental protection or health authority;
    (ii) Quarantine pests are pests of potential importance to the areas endangered thereby and not yet present there, or present but not widely distributed and being officially controlled;
    Decision XI/12. Definition of pre-shipment applications of methyl bromide...
    Pre-shipment applications are those non-quarantine applications applied within 21 days prior to export to meet the official requirements of the importing country or existing official requirements of the exporting country. Official requirements are those which are performed by, or authorized by, a national plant, animal, environmental, health or stored product authority;
    
    
11. When will EPA publish a rulemaking regarding critical and emergency use exemptions from this phaseout?
    Consistent with congressional mandates and the Montreal Protocol, exemptions from the U.S. methyl bromide phaseout schedule for emergency and critical uses will not be available until 2005. To prepare for the period when they will be available, EPA will spend the next two years drafting a rule to conform critical and emergency use exemptions with obligations under the Montreal Protocol and the Clean Air Act. This will include the details of these exemption programs, including the submittal process, the timing, and the procedures to be used by the U.S. government in making determinations for both types of exemptions. In the meantime, to meet the exemption criteria for critical uses in the Montreal Protocol, potential applicants should be engaged in activities that will demonstrate they are pursuing alternatives.
    
    
12. What about the specifics of Critical Use Exemption?
    Here is the language from the Montreal Protocol:
    Decision IX/6. Critical-use exemptions for methyl bromide
    1. To apply the following criteria and procedure in assessing a critical methyl bromide use for the purposes of control measures in Article 2 of the Protocol:
    (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;
    (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 consideration the circumstances of the particular nomination and the special needs of Article 5 Parties, including lack of financial and expert resources, institutional capacity, and information. Non-Article 5 Parties must demonstrate that research programmes are in place to develop and deploy alternatives and substitutes. Article 5 Parties must demonstrate that feasible alternatives shall be adopted as soon as they are confirmed as suitable to the Party's specific conditions and/or that they have applied to the Multilateral Fund or other sources for assistance in identifying, evaluating, adapting and demonstrating such options;
    
    Here is the language from the 1998 Congressional change to the Clean Air Act:
    ``(6) Critical uses.--To the extent consistent with the Montreal Protocol, the Administrator, after notice and opportunity for public comment, and after consultation with other departments or institutions of the Federal Government have regulatory authority related to methyl bromide, including the Secretary of Agriculture, may exempt the production, importation, and consumption of methyl bromide for critical uses.''.
    
    For more information on this, click here for Technical Questions and Answers on the Methyl Bromide Critical Use Exemption
    
    
13. What about specifics of the Emergency Use Exemption?
    Here is the language from the Montreal Protocol:
    Decision IX/7. Emergency use exemptions for methyl bromide
    The Ninth Meeting of the Parties decided in Dec. IX/6 to allow a Party, upon notification to the Secretariat, to use, in response to an emergency event, consumption of quantities not exceeding 20 tonnes of methyl bromide. The Secretariat and the Technology and Economic Assessment Panel will evaluate the use according to the "critical methyl bromide use" criteria and present this information to the next meeting of the Parties for review and appropriate guidance on future such emergencies, including whether or not the figure of 20 tonnes is appropriate.
    

Written by Bill Thomas of EPA's Global Programs Division

Last updated on November 29, 2000
http://www.epa.gov/ozone/mbr/harmoniz.html