Critical Use Exemptions: The Time is Now

At the Ninth Meeting of the Parties to the Montreal Protocol held September 25, 1997, in Decision IX/6, the Parties offered a "Critical Use Exemption" from control of methyl bromide uses after the phaseout. For developed countries the exemption will be effective in January 2005; for developing countries, January 2015.

The 2005 methyl bromide phaseout date for developed countries looms large, and focus will now shift towards applying for these critical use exemptions. According to the Montreal Protocol, exemptions from methyl bromide phaseout for critical uses are allowed provided certain conditions are met. Those applying for the critical use exemption must fulfill clause (b)(iii) of Decision IX/6. This clause states that the exemption will only be allowed if "it is demonstrated that an appropriate effort is being made to evaluate, commercialise and secure national regulatory approval of alternatives and substitutes...developed countries must demonstrate that research programmes are in place to develop and deploy alternatives and substitutes..." The Montreal Protocol also stipulates that users applying for a critical use exemption must demonstrate a significant market disruption and a lack of "technically and economically feasible alternatives."

The Montreal Protocol's Technology and Economic Assessment Panel (TEAP) issued a report in April 2001 outlining the status of the critical use exemption process. Since 2005 is only three growing seasons away, it is important for Parties to apply for the exemptions as early as possible.

Details about the domestic review process for the applications are being formulated by the Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA). However, TEAP issued tentative timetables for the application process in its April 2001 report. "A Party may wish to consider submitting to the Ozone Secretariat a nomination for a critical use exemption for 2005 by January 31, 2003, for a decision as early as the 2003 Meeting of the Parties," according to the TEAP report. "A 2003 decision by the Parties would allow farmers 12-15 months to plan agricultural practices for the 2005 growing season. A Party may (still) wish to submit a nomination to the Ozone Secretariat by January 31, 2004, but the applicant would have only 2-3 months notification by the Parties prior to January 1, 2005, on whether or not to grant an exemption for the use of methyl bromide after that date."

Each Party will need time to review applications from growers and other methyl bromide users prior to submitting nominations to the Secretariat. In turn, applicants will need time to prepare the application and gather supporting data.

TEAP developed a draft Critical Use Exemptions application timetable for consideration by the Parties. When decisions are needed 12-15 months prior to the 2005 growing season, TEAP delineated the following:

June 2002: Methyl bromide users apply to national governments

January 2003: National governments submit nominations to the Secretariat

May 2003: TEAP and MBTOC make recommendations to the Parties

July-December 2003: Parties decide (at the 15th Meeting of the Parties)

EPA anticipates requesting applications from U.S. methyl bromide users in early 2002. The U.S. Government will submit its nomination to the Secretariat in January 2003, after which the Protocol's Methyl Bromide Technical Options Committee (MBTOC) will make recommendations to TEAP, which will make recommendations to the Parties in May 2003. The Parties will make decisions on the critical use exemption applications during the 15^th Meeting of the Parties which will be held sometime between July and December 2003. Applications submitted to the U.S. Government in 2003 (and submitted to the Secretariat in January 2004) will be decided upon at the 16^th Meeting of the Parties in mid to late 2004, limiting planning time for growers applying for a 2005 exemption in 2003. In light of this time line, it is best for U.S. growers to make their applications to EPA in early 2002.

In preparation for critical use exemption applications, EPA held stakeholder meetings on February 16 and March 19, 2001, in Washington, DC. In the Federal Register on June 27, 2001, EPA announced that the agency is planning to "submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB): Request for Applications for Critical Use Exemptions from the Phaseout of Methyl Bromide, ICR #2031.01."

This is the first of three required Federal Register notices. The next notice will state that an ICR has been submitted to OMB and that comments will be accepted. The last notice will state approval of the ICR. The June 27 Federal Register notice states the data collection is designed to "(1) Maintain consistency with the international treaty, the Montreal Protocol on Substances that Deplete the Ozone Layer; (2) ensure that any critical use exemption complies with Section 604(d) of the CAA; and (3) provide EPA with necessary data to evaluate an application for a critical use exemption and to evaluate the technical and economic feasibility of methyl bromide alternatives in the circumstances of the specific use."

"While the administrative groundwork is being laid, users need to prepare now," says Amber Moreen, Environmental Scientist, EPA. "Methyl bromide users need to pull together research data on the alternatives tested and elucidate future research plans. Users must show they meet the Montreal Protocol's critical use exemption criteria."

The activities being undertaken by USDA, EPA, and TEAP make apparent the realities and importance of critical use exemptions to growers. The time to act is almost upon them.

Last Updated: January 17, 2002