Fact Sheet - Final Rule to Authorize Critical Use Exemptions of Methyl Bromide for the 2005 Supplemental Request

Action

On November 28, 2005, the Environmental Protection Agency (EPA) authorized 610,655 kilograms of methyl bromide for supplemental critical uses in 2005 through the allocation of critical stock allowances (CSAs). This amount totals 2.5 percent of the 1991 baseline consumption. This is a de-regulatory action.
On August 30, 2005, EPA published a direct final rule and concurrent proposal to make supplemental allowances available for critical uses in 2005 (70 FR 51270) but withdrew the direct final rule on October 18, 2005 after receiving adverse comments (70 FR 60443). In today’s rule, the Agency has addressed those comments and is making the allowances available to the regulated community.
This allocation supplements the critical use allowances (CUAs) and CSAs previously allocated for 2005, as published in the Federal Register on December 23, 2004 (69 FR 76982). That regulation established a framework for the critical use exemption.
Critical use exemptions may be available for those uses of methyl bromide that the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer (Protocol) agree have no technically and economically feasible alternatives.
Under the critical use exemption framework, end users of methyl bromide that meet the specified criteria of critical users would be able to purchase methyl bromide from their normal supplier but would certify, under penalty of law, that they are approved critical users.

Background

Methyl bromide, an odorless, colorless gas, is used to control a variety of pests in many different situations. It is heavily used by farmers of minor crops such as tomatoes and strawberries.
The Clean Air Act Amendments of 1990 direct the Environmental Protection Agency (EPA) to issue regulations to implement the provisions of the Montreal Protocol within the United States. Accordingly, EPA developed a scheme of production and consumption controls relative to substances addressed by the Protocol. The current regulatory requirements of the Stratospheric Ozone Protection Program implement the provisions of the Protocol and the Clean Air Act (CAA) by limiting the production and consumption of ozone-depleting substances. 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 action will modify regulations that govern the production, import, and export of methyl bromide, a powerful ozone depleting substance, under the authority of Title VI of the CAA and in accordance with U.S. obligations under the Protocol. 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.”
EPA held six stakeholder meetings during 2003 in order to get feedback from the public on ways to design and implement the critical use exemption program for methyl bromide.
2005 Control Period: In May 2002, EPA published a Federal Register notice requesting applications from end users of methyl bromide who believed they had no technically and economically feasible alternatives available to them. EPA reviewed these applications during September-December 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 are seeking 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 in March 2004. These exemptions were authorized by EPA on December 23, 2004, for consumption during the 2005 control period.
2006 Control Period: In May 2003, EPA published a second Federal Register notice requesting applications for the 2006 control period. After evaluating these applications, EPA created a second nomination that was submitted to the Protocol’s Ozone Secretariat in February 2004. These exemptions were authorized by the Parties at their 16th Meeting in November 2004 and their Second Extraordinary Meeting in July 2005.
In some cases the sector consortia did not file an application in 2002 but instead did so in 2003. In other cases, the sector consortia submitted additional data to EPA in 2003. Lastly, some sectors were incorrectly characterized in the first nomination, so EPA amended the sector chapters and the amounts of requests in the form of the 2005 supplemental request. The supplemental requests underwent a rigorous review process. This request amounts to 2.5% of 1991 baseline consumption.
The supplemental request was authorized by the Parties to the Protocol at their 16th Meeting in Prague, Czech Republic, in November 2004.

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Fact Sheet - Final Rule to Authorize Critical Use Exemptions of Methyl Bromide for the 2005 Supplemental Request

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