Final Rule to Create a Critical Use Exemption to the Phase-Out of Methyl Bromide and Exempt Certain Quantities for Critical Uses in 2005
- On December 15, 2004, the Environmental Protection Agency (EPA) finalized a rule to create the critical use exemption to the phase-out of methyl bromide (MeBr). Critical use exemptions are available for those uses of MeBr that the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer agreed have no technically and economically feasible alternatives. This rule takes effect on January 1, 2005.
- After careful consideration of all the comments received on the proposed rule, EPA is implementing the most simple and least burdensome option for the regulatory framework.
- EPA is creating a critical use exemption framework that is granting "critical use allowances" to producers and importers of MeBr that would allow them to produce and import up to 7,650,000 kilograms (30% of MeBr baseline) for critical uses in 2005. In addition, EPA is distributing an additional 1,283,229 kg (5% of baseline) worth of "critical stock allowances" to producers, importers, and distributers that would allow the holder to sell MeBr to critical uses from stocks that were manufactured/imported before January 1, 2005. End users of MeBr that meet specified criteria as critical uses will be able to purchase MeBr from their supplier as they normally do and will certify, under penalty of law, that they are approved critical uses.
- An additional 610,655 kg (2.5% of baseline) was recently authorized for 2005 critical uses by the Parties to the Montreal Protocol at their meeting on November 26, 2004. EPA is beginning the notice and comment rulemaking process to make supplemental quantities available for critical uses as quickly as possible.
- Only approved critical uses may avail themselves of critical use methyl bromide.
- Each year EPA will promulgate a rule through the notice and comment process that will cover the amount of MeBr to be made available yearly for critical uses in the future. These rulemakings will follow the decision(s) taken by the Parties to the Protocol at their annual meeting regarding MeBr exemptions for critical uses. The United States has proposed a multi-year process for CUEs, however, to date, this proposal has not been adopted by the Parties to the Montreal Protocol.
- The quarantine and preshipment (QPS) exemption is unaffected by today's action.
- MeBr, an odorless, colorless gas, that is used to control a variety of pests in many different situations. Methyl Bromide has been used in a wide variety of agricultural and commodity applications (for example: growing strawberries and tomatoes and fumigating flour mills) across the U.S.
- The Clean Air Act Amendments of 1990 and additional amendments to the Clean Air Act enacted in 1998 direct EPA to issue regulations to implement the provisions of the Montreal Protocol in the United States. Accordingly, EPA developed a framework of production and consumption controls relative to substances addressed by the Protocol. These regulatory requirements are codified at Subpart A to Part 82 of Volume 40 of the Code of Federal Regulations (40 CFR Part 82, Subpart A).
- The final action will affect regulations that govern the production, import, and export of MeBr, a powerful ozone depleting substance. Specifically, the rule amends the EPA regulations under the authority of Section 604(d)(6) of the CAA to create critical use exemptions, in accordance with Article 2H paragraph 5 of the Montreal Protocol, "to permit the level of production or consumption that is necessary to satisfy uses agreed by them [the Parties to the Montreal Protocol] to be critical uses."
- In 2002, EPA published a Federal register notice requesting applications from users of MeBr who believed they had no technically and economically feasible alternatives available to them. EPA reviewed these applications in 2002 and created a nomination of critical uses which was then submitted, in 2003, to the Montreal Protocol's Ozone Secretariat. The Secretariat sent nominations from more than a dozen countries that sought critical use exemptions to the Methyl Bromide Technical Options Committee (MBTOC). The MBTOC is an international technical body that advises the Parties to the Montreal Protocol. The Parties authorized exemptions for critical uses, drawing on the recommendations of the MBTOC, at their March 2004 meeting.
- EPA held six stakeholder meetings during 2003 in order to get comments from the public on ways to design and implement the critical use exemption program for MeBr.