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Annex I: Review of the working procedures and terms of reference of the Methyl Bromide Technical Options Committee

[Source: Annex I of the report of the Sixteenth Meeting of the Parties]

A.      Working procedures of the Methyl Bromide Technical Options Committee relating to the evaluation of nominations for critical uses of methyl bromide

  1. The schedule for the MBTOC assessment of critical-use exemptions will be revised as set out in the following table:

Actions

Indicative completion date
  1. Parties submit their nominations for critical-use exemptions to the Secretariat
  1. 24 January

      2. The nominations are forwarded to MBTOC co-chairs for distribution to the subgroups of appointed members
  1.  7 February

      3. Nominations in full are assessed by the subgroups of appointed members. The initial findings of the subgroups, and any requests for additional information are forwarded to the MBTOC co-chairs for clearance
  1. 28 February

     4. MBTOC co-chairs forward the cleared advice on initial findings and requests for additional information on to the nominating Party concerned and consult with the Party on the possible presumption therein
  1. 7 March

     5. Nominating Party develops and submits its response to the MBTOC co-chairs
  1. 28 March

     6. MBTOC meets as usual to assess nominations, including any additional information provided by the nominating Party prior to the MBTOC meeting under action 5 and any additional information provided by nominating Party through pre-arranged teleconference, or through meetings with national experts, in accordance with paragraph 3.4 of the terms of reference of TEAP, advises the nominating Party of any outstanding information regarding the information requested under action 3 for those critical-use nominations where it was unable to assess the nomination, and provides its proposed recommendations to TEAP
  1. 11 April

      7. TEAP meets as usual in May, among other things, to assess the MBTOC report on critical-use nominations and submits the finalized report on recommendations and findings to the Secretariat
  1. early May

       8. The Secretariat posts the finalized report on its web site and circulates it to the Parties
  1. mid-May

        9. Nominating Party has the opportunity to consult with MBTOC on a bilateral basis in conjunction with the Open-ended Working Group meetings
  1. early July

        10. The nominating Party submits further clarification for the critical-use nomination in the “unable to assess” category or if requested to do so by the Open-ended Working Group, and provides additional information should it wish to appeal against a critical-use nomination recommendation by MBTOC
  1. early August

        11. MBTOC meets to reassess only those critical-use nominations in the “unable to assess” category, those where additional information has been submitted by the nominating Party and any critical-use nominations for which additional information has been requested by the Open-ended Working Group
  1. late August
  2.  

        12. MBTOC final report is made available to Parties through TEAP

early October

2. Standard presumptions that underlie MBTOC recommendations of critical-use nominations need to be transparent and technically and economically justified, and should be clearly stated in its reports, and submitted to the Parties for approval at the Seventeenth Meeting of the Parties, and thereafter on an annual basis. Reaffirming that the individual circumstances are the primary point of departure for an assessment of a nomination, MBTOC should not apply standard presumptions where the Party has demonstrated that the individual circumstances of the nomination indicate otherwise.

3. In the event that a nomination has been recommended for rejection or reduction as assessed under action 6 above, MBTOC will give the nominating Party the opportunity to send detailed corroborating information taking into account the circumstances of the nomination. On the basis of this additional information (and possible consultations with the nominating Party by pre-arranged teleconference) MBTOC will reassess this nomination.

4. Although the burden of proof remains with the Party to justify a request for a critical-use exemption, MBTOC will provide in its report a clear explanation of its operation with respect to the process of making determinations for its recommendations, and clearly state the approach, assumptions and reasoning used in the evaluation of the critical-use nominations. When cuts or denials are proposed, the description should include citations and also indicate where alternatives are technically and economically feasible in circumstances similar to those in the nomination, as described in decision Ex.1/5, paragraph 8.

5. Communications between the nominating Party and MBTOC will be based on the principles of fairness and due process, on the basis of corroborating written documentation, and will be properly reflected in the MBTOC and TEAP reports.

6. The role of the Secretariat should be central in regard to assistance in organizational, administrative and technical aspects of the process whereby the efficiency, operations and communications could be enhanced.

7. MBTOC is requested to develop and keep up to date an expanded matrix describing the conditions under which alternatives are technically and economically feasible. The matrix should include detailed references, such as citations of trial reports demonstrating this feasibility or case studies of commercial operation. Before application, the Parties should approve the matrix and any subsequent changes.

8. MBTOC, when holding its meeting, can consult the nominating Party through pre-arranged teleconference or through face-to-face discussions with national experts, in accordance with paragraph 3.4 of the terms of reference for the Technology and Economic Assessment Panel, in order to facilitate a transparent exchange of information and understanding between MBTOC and the critical-use exemption applicant.

9. It is recalled that paragraphs 9 (f) and 9 (g) of decision Ex.I/4 request TEAP to recommend an accounting framework and to provide a format for a critical-use exemption report.

10. Despite the opportunities given to the nominating Party to supply any additional information required in support of its nomination, MBTOC should categorize the nomination as “unable to assess” if there is insufficient information to make an assessment, and clearly explain what information was missing.

B.          Membership of the Methyl Bromide Technical Options Committee

11. TEAP and MBTOC are urged to apply strictly the current terms of reference of TEAP approved by the Eighth Meeting of the Parties in its decision VIII/9, in particular:

(a) To draw up guidelines for nominating experts by the Parties to be published by the Secretariat;

(b) To publish and keep current a matrix showing existing and needed skills for the MBTOC members. In so doing, MBTOC may like to use all available UNEP publications, the Secretariat web page, the regional ozone officers’ network meetings and any other means considered appropriate. Parties, and in particular Parties operating under Article 5, are urged to consider nominating experts to MBTOC in those areas where missing skills and expertise have been identified by MBTOC;

(c)  To ensure that MBTOC has about 20–35 members as set out in the terms of reference of TEAP, while also ensuring coverage of the required expertise;

(d) In order to meet the overall goal of achieving a representation in the Committee of about 50 per cent for Parties operating under Article 5, where candidates from Parties operating under Article 5 and those not so operating have equivalent expertise and experience, the MBTOC co-chairs shall give preference to the appointment of those experts from Parties operating under Article 5. The MBTOC co-chairs, supported by the Ozone Secretariat, should aim to achieve a balanced membership within two years, or as soon as possible thereafter. The Parties shall monitor progress in pursuing a balanced membership by reviewing the advice provided in the work plan on the composition of MBTOC;

(e)  Skills and expertise in the following fields, among others deemed necessary by MBTOC, should be represented:

(i) Chemical and non-chemical alternatives to methyl bromide;

(ii) Alternative methods of pest control that have replaced or could replace significant uses of methyl bromide;

(iii) Technology transfer or extension activities related to alternatives;

(iv) Regulatory processes of registration;

(v) Agricultural economics;

(vi) Weed control;

(vii) Resistance management;

(viii) Recapture and recycling of methyl bromide.

12. MBTOC should ensure a membership with substantive practical and first-hand experience. With respect to (i), (ii), (iii) and (vi) above, preference should be given to candidates who have experience in the implementation of more than one alternative.

13. With a view to supporting a timely review process and ensuring additional expertise that may be required for a particular critical-use nomination, MBTOC may seek assistance from additional experts who, at the request of MBTOC, should provide written input and assist in the review of MBTOC documents. These consulting experts can be invited by the MBTOC co-chairs, on an exceptional basis, to be heard personally at a meeting of MBTOC. For reasons of transparency and accountability, the role and type of input of these consulting experts should be clearly set out.

14. Candidates should be willing to undertake an evaluation of a proportion of the nominations before arriving at the meeting in order to take advantage of all the local resources available (library, internet, reports); and to undertake any work after the meeting necessary to finalize the report.

15. An annual work plan will enhance the transparency of, and insight in, the operations of MBTOC. Such a plan should indicate, among other things:

(a) Key events for a given year;

(b) Envisaged meeting dates of MBTOC, including the stage in the nomination and evaluation process to which the respective meetings relate;

(c) Tasks to be accomplished at each meeting, including appropriate delegation of such tasks;

(d) Timing of interim and final reports;

(e) Clear references to the timelines relating to nominations;

(f) Information related to financial needs, while noting that financial considerations would still be reviewed solely in the context of the review of the Secretariat’s budget;

(g) Changes in the composition of MBTOC, pursuant to the criteria for selection;

(h) Summary report of MBTOC activities over the previous year, including matters that MBTOC did not manage to complete, the reasons for this and plans to address these unfinished matters;

(i) Matrix with existing and needed skills and expertise; and

(j) Any new or revised standards or presumptions that MBTOC seeks to apply in its future assessment of critical-use nominations, for approval by the Meeting of the Parties.

16. The annual work plan should be drawn up by MBTOC (supported by the Ozone Secretariat) in consultation with TEAP, which shall submit it to the Meeting of the Parties each year.

C.      Further guidance on the criteria for the evaluation of nominations for critical uses of methyl bromide

1.               On the availability of technically and economically feasible alternatives, and economic feasibility

17. Pending further consideration by the Meeting of the Parties, MBTOC shall continue to define:

(a) “Alternatives” as any practice or treatment that can be used in place of methyl bromide;

(b) “Existing alternatives” as those alternatives in present or past use in some regions; and

(c) “Potential alternatives” as those alternatives in the process of investigation or development.

18. Understanding of the concept of “availability” shall be primarily guided by the alternative’s market presence in sufficient quantities and accessibility, taking into account, among other things, regulatory constraints.

19. To the factors already listed in annex I, part B, paragraph 4 of the report of the Extraordinary Meeting of the Parties, with regard to paragraphs 6 and 9 (c) of decision Ex.I/4, the following are added:

(a) The difference in purchasing costs between methyl bromide and the alternatives per treated areas, mass, or volume, and related costs such as new equipment, labour costs and losses resulting from closing the fumigated object for an extended period of time;

(b) Difference in yield per hectare, including its quality, and harvest time, between the alternative and methyl bromide;

(c) Percentage change in net revenue if alternatives are used.

20. In line with paragraph 4 above, in any case in which a Party makes a nomination which relies on the economic criteria of decision IX/6, MBTOC should, in its report, explicitly state the central basis for the Party’s economic argument and explicitly explain how it addressed that factor, and, in cases in which MBTOC recommends a cut; MBTOC should also provide an explanation of its economic feasibility.

21. As regards significant market disruption, it is recalled that paragraph 1 (a) (i) of decision IX/6 provides that a use of methyl bromide should qualify as “critical” only if the nominating Party determines that the specific use is critical because the lack of availability of methyl bromide for that use would result in a significant market disruption. Parties are invited to include in their nominations, information on their determination referred to in paragraph 1 (a) (i) of decision IX/6.

2.               On the duration of critical-use nomination of methyl bromide

22.               It is recalled that the Sixteenth Meeting of the Parties adopted decision XVI/3, related to the duration of critical-use nominations of methyl bromide.

3.               On aggregation of nominations

23.               It is reaffirmed that applications shall be considered on a case-by-case basis. In that context, MBTOC shall continue its current approach as regards the level of aggregation or disaggregation.

4.               On individual circumstances of nominations

24.               In the interest of fair and equal treatment, nominations should be assessed in the light of compliance with the criteria of decision IX/6 and other relevant decisions, irrespective of the size or number of tonnes in the nomination. MBTOC is invited to propose a streamlined method for assessing small nominations to the degree that the method is consistent with the principle stated above.

25.               If a particular product is not registered or subject to national or local regulatory restrictions, or if it becomes de-registered, MBTOC should recommend a critical-use exemption, provided there are no other feasible alternatives according to decision IX/6 for the specific situation. MBTOC should request written advice from the nominating Party, which may include advice from the manufacturer of an alternative.

26.               In cases where alternatives are currently in the registration process, MBTOC should note this fact. It is acknowledged that a Party does not always have the capability to influence the registration of alternatives. A nominating Party should inform MBTOC when registration occurs and MBTOC should take this kind of information into account when recommending critical-use exemptions, as is already requested by the Parties in decision IX/6, paragraph 1 (b) (iii).

5.               On the handbook on critical use nominations for methyl bromide

27.               The handbook is a general reference for all those involved in the critical-use exemption process, in part owing to the convenience of using the handbook as a general reference volume for methyl bromide decisions, as well as the critical-use nomination procedure. Therefore, the handbook should be reframed to become a comprehensive “one-stop shop” that includes information on methyl bromide decisions, working procedures and terms of reference of MBTOC, the critical-use nomination process, agreed standard presumptions and other related topics. The text should be taken as far as possible, however, directly from decisions of the Meeting of the Parties or other language that has been approved by the Parties.

28.               The onus remains on the nominating Party to provide sufficient information in order for MBTOC to be able to assess whether critical-use nominations comply fully with decision IX/6. The handbook should inform Parties which information requirements are needed.

29.               TEAP and its MBTOC should be responsible for updating the handbook. TEAP and its MBTOC should not put any new proposals in the handbook which do not have a basis in a decision of the Meeting of the Parties. Factual updates of the handbook incorporating the specific language of the decisions of the Parties do not require prior approval from the Parties. Otherwise, updates require approval from the Parties.

6.               On approach, assumptions and reasoning to be used in the evaluation

30.               Decision IX/6 is the basis for the assessment of critical-use exemptions by MBTOC.

31.               While the burden of proof remains with the nominating Party to justify the request for a critical‑use exemption, MBTOC, in its report, should indicate whether the nominating Party has provided the information in order for MBTOC to determine that the Party has met the applicable criteria set out in decision IX/6 and related decisions.

32.               Exemptions must fully comply with decision IX/6 and other relevant decisions, and are intended to be limited to the levels needed for critical-use exemptions, temporary derogations from the phase-out of methyl bromide in that they are to apply only until there are technically and economically feasible alternatives that otherwise meet the criteria in decision IX/6. MBTOC should take a precise and transparent approach to the application of the criteria, having regard, especially, to paragraphs 4 and 20 above.

7.               On similar circumstances

33.               When MBTOC makes differentiated recommendations on nominations that cover the same use, it should clearly explain why one country’s nomination is being treated differently than the nominations of other countries or the nominations of the same country, based on more information and citations of feasible alternatives relevant to these nominations, thus eliminating unjustified inconsistencies in assessments and ensuring equal treatment of nominations.

8.               On market penetration of alternatives

34.               When considering the market penetration of an alternative in a nominating Party, MBTOC should evaluate the critical-use nominations based on information provided by the Parties and other information, in accordance with the terms of reference of TEAP, and in the light of likely implementation time in the circumstances of the nomination, and provide recommendations. In evaluating, MBTOC should request written advice from the nominating Party, which may include further information from the manufacturer of an alternative.

35.               In situations where MBTOC recommends a nomination on grounds that it is necessary to have a period for adoption of alternatives, the basis for calculating the time period must be explained fully in the TEAP report and take fully into account the information provided by the nominating Party, the supplier, the distributor or the manufacturer. Relevant factors for such a calculation include the number of enterprises that need to transition, e.g., the number of fumigation and pest control companies, estimated training time assuming full effort, opportunities for importing alternative equipment and expertise if not available locally, and costs involved.

36.               A case-by-case approach by MBTOC for each specific nomination (on the basis of information provided according to paragraph 35 above) is necessary above a one-size-fits-all approach when considering penetration of alternatives and transition times. 

9.               On conflict of interest

37.               The members of MBTOC should be required to declare any interest that they may have on the basis of a declaration, to be agreed by the Parties, and subject to any conditions attached to it.

38.               It is recognized that the topic of conflict of interest, including the format of the declaration referred to in paragraph 37 above, needs further deliberations, taking fully into account the experience gained in this regard, the issue of confidentiality and the existing code of conduct contained in paragraph 5 of the terms of reference of TEAP.