CRS Report: 97-940 - Stratospheric Ozone Depletion: Methyl Bromide Control Measures

Wayne A. Morrissey
Science and Technology Information Analyst
Science Technology and Medicine Division

This report is intended to help the reader follow changes over time in regulations domestic and international - governing methyl bromide for its potential ozone-depleting effects. Methyl bromide, like chlorofluorocarbons (CFCs), has been implicated by scientists in contributing to stratospheric ozone depletion, which may pose health threats to living organisms due to increased exposure to harmful ultraviolet (UV) radiation. Methyl bromide is currently used widely as a pesticide in international agricultural commerce. Production, consumption and trade of this substance is regulated internationally under the 1987 Montreal Protocol on Substances which Deplete the Ozone layer and subsequent amendments and, in the United States, under the Clean Air Act Amendments of 1990, amended (1993). The U.S. Congress is concerned that domestic regulations, which require a more accelerated phase out of production and consumption of methyl bromide than international regulations, may provide an economic advantage for countries which continue to produce and use this substance after it has been phased out in the United States. Hearings have been held by Congress on behalf of the U.S. agricultural community, to consider whether U.S. regulations might be made more consistent with international regulations, and authority has been sought in existing law for special use exemptions for agriculture. With evolving science, regulations have changed over time to reflect improvement in knowledge about methyl bromide's potential ozone-depleting effects. Also, regulatory responsibilities for industrialized countries other than the United States and, more recently, developing countries have changed, but are still less stringent than domestic regulations, posing an issue for U.S. agricultural trade.

Methyl bromide, an agricultural fumigant whose atmospheric decomposition products are believed to be harmful to the stratospheric ozone layer, was first listed for control under the 1992 Amendments to the 1987 Montreal Protocol on Ozone Depleting Substances. Methyl bromide is used as a soil fumigant for treatment of plant disease and pest infestation during cultivation, and is applied as an insecticide or fungicide on grains, fruits, nuts and other organic non-foodstuffs, such as wood products and flowers, in storage facilities or transport containers prior to shipping, or after shipping at agricultural quarantine facilities. Because scientists found methyl bromide to have a potentially high ozone depletion factor, the United States identified it as a Class I ozone-depleting substance under Title VI of the Clean Air Act Amendments of 1990 (amended 1993), whereby production of it would be phased out within 7 years, at the end of the year 2000.

Since 1992, control measures on methyl bromide have undergone change, both domestically and internationally, reflecting new scientific knowledge about its ozone depleting potential and the projected economic impact of phasing it out on agricultural trade.(1) There have been formal discussions and congressional hearings in the United States on creating waivers for "essential uses" of methyl bromide beyond its currently scheduled domestic phase-out date of Jan. 1, 2001, in the event that undue economic hardship occur for farmers who do not have effective alternative substances or technologies. U.S. lawmakers are also concerned about different requirements for phase out, domestically and internationally, as well as waivers granted some countries to continue to produce and use methyl bromide domestically for "basic needs." All regulations thus far have exempted methyl bromide used for quarantine and pre-shipment treatment of agricultural commodities.

On September 17, 1997, at the 9th Meeting of Montreal Protocol Parties (MOP), participants agreed to an accelerated phase out of methyl bromide and proposed further amendments to the Montreal Protocol. Industrialized countries will now be subject to a phase out by the year 2005, with exemptions for "critical uses,"2 and interim deductions of 25% by the year 1999, 50% by the year 2001, and 70% by the year 2003. Developing countries that are covered by Article 5 of the treaty, have agreed to a 20% reduction in consumption by the year 2005 and phase out by the year 2015. Average use for 1995-1998 would be used as a baseline for calculating interim reductions. The reduction schedule for countries covered by Article 5 of the Montreal Protocol would be reassessed in the year 2003. The Protocol's Multilateral Fund would make $25 million available per year for 1998 and 1999 for activities to phase out methyl bromide in developing countries. Also, one year alter the proposed "1997 Amendments" to the Montreal Protocol were to enter into force, trade in methyl bromide would be sanctioned among participating parties by the UN Ozone Secretariat by its granting licenses to export the substance. This process would be tied into an accounting system to keep track of amounts of methyl bromide (virgin, used, recycled or reclaimed) exchanged in trade; trade between signatories and non parties would not be in compliance with the treaty.

Decision Ix/2, concerning critical-use exemptions for methyl bromide, agreed to by Parties at the 9th MOP, states that "critical uses" are restricted to those identified by a nominating party where there is a lack of availability of methyl bromide for that use and it would result in significant market disruption; no technically and economically feasible alternatives or substitutes are 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; production and consumption of methyl bromide should be permitted only if all technically and economically feasible steps have been taken to minimize the critical use and emissions associated with methyl bromide; the methyl bromide is not available in sufficient quantity and quality from existing stocks or banked or recycled methyl bromide; and it is demonstrated [by the nominating party] that an appropriate effort is being made to evaluate, commercialize and secure national regulatory approval of alternatives and substitutes for a nominated use. Furthermore, Article 5 parties must demonstrate that a feasible alternative will be adopted as soon as they are confirmed as suitable to the party's specific conditions (above), and/or the Article 5 party has applied to the Multilateral Fund or other sources for assistance in identifying, evaluating and adapting, and demonstrating such options.

The following table compares provisions of U.S. and international regulation of methyl bromide because of its ozone-depleting potential, including special circumstances provided to developing countries covered by Article 5. Each column is arranged chronologically to show how control measures have changed over time. Scientists have projected that ozone-depleting substances of greater harm to the stratosphere, such as CFCs and halons, might possibly return to pre-ozone hole concentrations shortly after the year 2000 as a result of an existing ban on production of those substances. Nature may continue to produce its own surprises, however. The depth and extent of ozone depletion over the Southern Hemisphere continues to grow because of historical emissions, released over decades and resident in the atmosphere. The critical question about methyl bromide is whether it will continue to play a crucial role in perpetuating future ozone depletion and, if so, what, if any, additional control measures may be necessary now to control its future impact.

Table 1.
Methyl Bromide: A Comparative Chronology
of Domestic and International Regulations

DOMESTIC LAW	INTERNATIONAL TREATY
Clean Air Act Amendments of 1992. Title VI: Stratospheric Ozone Protection	1992 Amendments to the 1987 Montreal Protocol on Ozone Depleting Substances

United States	Industrialized Countries	Developing Countries Under Article 5 of the Montreal Protocol

In response to Natural Resources Defense Council! Environmental Defense Fund/ Friends of the Earth petition methyl bromide was considered for listing as Class I, controlled, ozone depleting substance under U.S. CAA, 18 March 1992. EPA was required by section, 602(e) to adopt an ozone-depleting potential (ODP) consistent with that contained in the Montreal Protocol. EPA made known its intention to list methyl bromide as a Class I substance at 4th Meeting of Montreal Protocol Parties, in Copenhagen, November l992. EPA issued Environmental Protection Agency, 40 CFR Part 82, Protection of Stratospheric Ozone: Notice of Proposed Rule Making, March 18, 1993 EPA issued Environmental Protection Agency, 40 CFR Part 82. Notice of Final Rulemaking, Part 11 December 10, 1993. FedReg. 58, 236: 650I8-82. Under final rules, EPA established baseline production and consumption allowances for chemicals added to the list of Class I ozone~epletin; substances, including methyl bromide, under section 602 of CAA.	Methyl bromide was listed as controlled substance at the 4th Meeting of Montreal Protocol Patties, November 1992. Base year chosen as 1992. Production and consumption would be frozen by 1995; with a 25% phase out by the year 2000; however, agricultural quarantine and fumigation uses would be exempted until 1997. At December 1995 Meeting of Parties to the Vienna Convention on Substances that Deplete the Ozone Layer. Addition proposed to Annex III of Montreal Protocol, i.e., Annex E; Metlhy1 Bromide adopted. Article 2H: Methyl Bromide appended to Montreal Protocol. UNEP scientific and economic studies or June 1994 adopted to guide decisions prepared and adopted at 6th Meeting of Montreal Protocol Parties (May 1996). Consumption of methyl bromide would be capped at l991 levels, beginning January 1995 and production capped at 1991 levels except for up to an additional 10% allowed for export "to satisfy basic needs of Article 5 Parties." Quarantine and preshipment applications exempted pending 1997 scientific assessment. Production and consumption levels were frozen at 1991 baseline beginning 1 January 1994 until 1 January 200l (control period), when production, if not consumption, would be eliminated. No interim reductions in production and consumption were required. Furthermore, agricultural products treated with methyl bromide would not require labeling (section 611, CAA), denoting that such commodities would not be identified as products which use or contain methyl bromide and consequently would not be counted in baseline consumption amounts. Also, during control period, EPA must track and verify that exports are either for emission (consumption/release) or have been transformed or destroyed (supplemental rule issued end of 1995 on re-exports). Insignificant production waivers may be granted. Importers need not hold consumption allowances; per subsection 82.11 which governs exports to Article 5 Parties. Also, export allowances are permitted in lieu of domestic production allowances.	No express requirements cited for Article 5 Countries until Vienna Convention Meeting December 1995, which proposed Annex III, Article 5, paragraph 8 ter: "Special situation of developing countries (Article 5(1))" and adopted it. As of 1 January 2002, average consumption and production for the period 1995-1998, inclusive, would be calculated as base level for Article 5 parties. Industrialized countries allowed tip to l0% additional production above interim targets to meet basic needs of Article 5 countries. Article 5 countries' consumption would be capped at 2015 1evels by 1 January 2016. Consumption would be phased out by 1 January 2040. In September 1997, at the 9th Meeting of Parties to the Montreal Protocol a decision was adopted that when 1997 amendments enter into force, Article 5 Parties would be committed to a 20% reduction by the year 2005 and phase out by the year 2015, and, as previously, average of 1995-1998 would be used for baseline consumption. Also, interim reduction schedule would be reviewed in the year 2003. New Control Measures adopted April 1996. Annex E: Methyl Bromide added to Class I schedule of Montreal Protocol. Base Levels were frozen at 1991 levels, 1 January 1995. Production and consumption capped at 75% by 1 January 2001 plus up to additional l0% allowed for export to Article 5 countries. Production and consumption capped at 50% by 1 January 2005 plus up to 10% production allowed for export to Article 5 countries. Production and consumption phased out by 1 January 2010, except for up to 15% production allowed for export to Article 5 countries. Ninth, Meeting of Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, 17 September 1997. Accelerated phase out of methyl bromide production and consumption adopted. Industrialized countries would phase out production and consumption by the year 2005, w/exemptions for critical use. Interim reductions of 25% by 1999, 50% by 2000, 70% by 2003 required. One year after entry into force of agreement trade banned between Parties and non-Parties, 10% additional production by industrialized countries allowed for licensed export to eligible Article 5 Parties after 2005. Preshipment and quarantine uses continues to be exempted from baseline production and consumption calculations.

1. For more information see Wayne A. Morrissev, "Methyl Bromide and Stratospheric Ozone Depletion: New Directions for Regulation?" CRS Report 96-474 SPR. (Washington, D.C., May 22, 1996)

Ozone Secretariat, UN Environmental Programme, Ninth Meeting of the Parties to the Montreal Protocol on Substances That Deplete the Ozone Layer. Draft Decision: IX/1 "Further adjustments and amendments to the Montreal Protocol" and Decision IX/2: "Critical-use exemptions for methyl bromide." (UNEP/OzL.Pro.9/6 10 June 1997).

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