Protection of Stratospheric Ozone: Process for Exempting Critical Uses of Methyl Bromide, 29494-29497 [05-10195]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 98 (Monday, May 23, 2005)]
[Notices]
[Pages 29494-29497]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-10195]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7916-3]


Protection of Stratospheric Ozone: Process for Exempting Critical 
Uses of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of solicitation of applications and information on 
alternatives

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SUMMARY: EPA is soliciting applications for the Critical Use Exemption 
from the phaseout of methyl bromide for 2007 and beyond. This 
application process offers users of methyl bromide the opportunity to 
provide technical and economic information to support a ``critical 
use'' claim. Today's notice also invites interested parties to provide 
information on the technical and economic feasibility of methyl bromide 
alternatives.

[[Page 29495]]

    Methyl bromide is a chemical pesticide that has been identified 
under the Montreal Protocol on Substances that Deplete the Ozone Layer 
and the Clean Air Act as an ozone-depleting substance. The complete 
phaseout of methyl bromide took effect on January 1, 2005. The Critical 
Use Exemption is designed to allow continued production and import of 
methyl bromide after the phaseout for those uses that have no 
technically and economically feasible alternatives. Critical Use 
Exemptions are exemptions from the January 1, 2005 methyl bromide 
phaseout.
    Applicants for the exemption are requested to submit technical and 
economic information to EPA for U.S. review. The U.S. will then create 
a national nomination for review by the Parties to the Montreal 
Protocol. EPA encourages users with similar circumstances of use to 
submit a single application. Please contact your state regulatory 
agency to receive information about their involvement in the process.

DATES: Applications for the Critical Use Exemption must be postmarked 
on or before August 8, 2005.

ADDRESSES: Applications for the methyl bromide Critical Use Exemption 
should be submitted in duplicate (two copies) by mail to: U.S. 
Environmental Protection Agency, Office of Air and Radiation, 
Stratospheric Protection Division, Attention Methyl Bromide Review 
Team, Mail Code 6205J, 1200 Pennsylvania Ave, NW., Washington, DC 20460 
or by courier delivery (other than U.S. Post Office overnight) to: U.S. 
Environmental Protection Agency, Office of Air and Radiation, 
Stratospheric Protection Division, Attention Methyl Bromide Review 
Team, 1310 L St. NW., Room 827L, Washington DC 20005. EPA also 
encourages users to submit their applications electronically to Marta 
Montoro, Stratospheric Protection Division, at montoro.marta@epa.gov. 
If the application is submitted electronically, applicants are 
requested to fax a signed copy of Worksheet 1 to Marta Montoro at (202) 
343-2337 or (202) 343-2338 by the application deadline.

FOR FURTHER INFORMATION CONTACT: General Information: U.S. EPA 
Stratospheric Ozone Information Hotline, 1-800-296-1996; also https://
www.epa.gov/ozone/mbr.
    Technical Information: Colwell Cook, U.S. Environmental Protection 
Agency, Office of Pesticide Programs (7503C), 1200 Pennsylvania Ave., 
NW., Washington, DC, 20460, 703-308-8146. E-mail: cook.colwell@epa.gov.
    Economic Information: Elisa Rim, U.S. Environmental Protection 
Agency, Office of Pesticide Programs (7503C), 1200 Pennsylvania Ave., 
NW., Washington, DC, 20460, 703-308-8123. E-mail: rim.elisa@epa.gov.
    Regulatory Information: Marta Montoro, U.S. Environmental 
Protection Agency, Stratospheric Protection Division (6205J), 1200 
Pennsylvania Ave., NW., Washington, DC, 20460, 202-343-9321. E-mail: 
montoro.marta@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What do I need to know to respond to this request for 
applications?
A. Who can respond to this request for information?
B. Whom can I contact to find out if a consortium is submitting an 
application form for my methyl bromide use?
C. How do I obtain an application form for the Methyl Bromide 
Critical Use Exemption?
D. What alternatives must applicants address when applying for a 
Critical Use Exemption?
E. What portions of the applications will be considered confidential 
business information?
F. Must I submit a ``Notice of Intent to Apply?''
G. What if I submit an incomplete application?
H. What if I already applied in 2002 and/or 2003 and/or 2004?
II. What is the legal authority for the Critical Use Exemption?
A. What is the Clean Air Act (CAA) authority for implementing the 
Critical Use Exemption to the methyl bromide phaseout?
B. What is the Montreal Protocol authority for granting a Critical 
Use Exemption after the methyl bromide phaseout?
III. How will the U.S. implement the Critical Use Exemption?
A. When will the exemption become available to U.S. users of methyl 
bromide?
B. What is the projected timeline for the Critical Use Exemption 
application process?

I. What Do I Need To Know to Respond to This Request for Applications?

A. Who can respond to this request for information?

    The application form may be submitted either by a consortium 
representing multiple users or by individual users who anticipate 
needing methyl bromide in 2007 and beyond and believe there are no 
technically and economically feasible alternatives. EPA encourages 
groups of users with similar circumstances of use to submit a single 
application (for example, any number of pre-plant users with similar 
soil, pest, and climactic conditions can join together to submit a 
single application). In some instances, state agencies will assist 
users with the application process (see discussion of voluntary 
state involvement in Part I.B. below).
    In addition to requesting information from applicants for the 
Critical Use Exemption, this solicitation for information provides 
an opportunity for any interested party to provide EPA with 
information on methyl bromide alternatives (e.g. technical and/or 
economic feasibility research). The application form for the methyl 
bromide Critical Use Exemption and other information on research 
relevant to alternatives must be sent to the addresses specified 
above or emailed to the address specified above. The applicant's 
signature, which is required for processing and is required on 
Worksheet 1 of the application, may be faxed to Marta Montoro at 
(202) 343-2337 or (202) 343-2338.

B. Whom can I contact to find out if a consortium is submitting an 
application form for my methyl bromide use?

    Please contact your local, state, regional or national commodity 
association to find out if they plan on submitting an application on 
behalf of your commodity group.
    Additionally, you should contact your state regulatory agency 
(generally this will be the State Department of Agriculture or State 
Environmental Protection Agency) to receive information about their 
involvement in the process. If your state agency has chosen to 
participate, EPA encourages all applicants to first submit their 
applications to the state regulatory agency, which will then forward 
them to EPA. The National Pesticide Information Center Web site is 
one resource available for identifying the lead pesticide agency in 
each state (https://ace.orst.edu/info/npic/state1.htm).

C. How do I obtain an Application Form for the methyl bromide 
Critical Use Exemption?

    An Application Form for the methyl bromide Critical Use 
Exemption can be obtained either in electronic or hard-copy form. 
EPA encourages use of the electronic form. Applications can be 
obtained in the following ways:
    1. PDF format and Microsoft Excel at EPA website: https://
www.epa.gov/ozone/mbr;
    2. Hard copy ordered through the Stratospheric Ozone Protection 
Hotline at 1-800-296-1996;
    3. Hard-copy format at Air Docket No. OAR-2003-0017. The docket 
is located in room B-102, EPA West Building, U.S. Environmental 
Protection Agency, 1301 Constitution Ave. NW., Washington DC, 20004. 
The Docket Office is open from 8:30 a.m. until 4:30 p.m. Monday 
through Friday. A reasonable fee may be charged by EPA for copying 
docket materials.

D. What alternatives must applicants address when applying for a 
Critical Use Exemption?

    To support the assertion that a specific use of methyl bromide 
is ``critical,'' applicants are expected to demonstrate that there 
are no technically and economically feasible alternatives available 
to the user of methyl bromide. The Parties to the Montreal Protocol 
have developed an ``International Index'' of methyl bromide 
alternatives which lists chemical and non-chemical alternatives, by 
crop (https://www.epa.gov/ozone/mbr/

[[Page 29496]]

in--alt--in.html). The chemicals and non-chemical practices included 
on this index were identified by the international technical 
advisory groups under the Montreal Protocol: The Methyl Bromide 
Technical Options Committee (MBTOC) and the Technical and Economic 
Assessment Panel (TEAP). The MBTOC and the TEAP determined that 
alternatives in the International Index have the ``technical 
potential'' to replace methyl bromide in at least one circumstance 
of use on the identified crop (Report of the Technical and Economic 
Assessment Panel, 1997) (https://www.teap.org/html/teap_
reports.html). A corresponding U.S. Index of alternatives (also 
listed by crop) has been developed by the U.S. government (https://
www.epa.gov/ozone/mbr/us_alt_in.html). This U.S. Index reflects 
whether chemical alternatives included in the International Index 
have been registered for use in the United States.
    Applicants must address technical, regulatory, and economic 
issues that limit the adoption of ``chemical alternatives'' and 
combinations of ``chemical'' and ``non-chemical alternatives'' 
listed for their crop within the ``U.S. Index'' of Methyl Bromide 
Alternatives. Applicants must also address technical, regulatory, 
and economic issues that limit the adoption of ``non-chemical 
alternatives'' and combinations of ``chemical'' and ``non-chemical 
alternatives'' listed for their crop in the ``International Index.''

E. What portions of the applications will be considered 
confidential business information?

    The person submitting information to EPA in response to this 
Notice may assert a business confidentiality claim covering part or 
all of the information by placing on (or attaching to) the 
information, at the time it is submitted to EPA, a cover sheet, 
stamped or typed legend, or other suitable form of notice employing 
language such as ``trade secret,'' ``proprietary,'' or ``company 
confidential.'' Allegedly confidential portions of otherwise non-
confidential documents should be clearly identified by the 
applicant, and may be submitted separately to facilitate 
identification and handling by EPA. If the applicant desires 
confidential treatment only until a certain date or until the 
occurrence of a certain event, the notice should so state. 
Information covered by a claim of confidentiality will be disclosed 
by EPA only to the extent, and by means of the procedures, set forth 
under 40 CFR Part 2 Subpart B; 41 FR 36752, 43 FR 40000, 50 FR 
51661. If no claim of confidentiality accompanies the information 
when it is received by EPA, it may be made available to the public 
by EPA without further notice to the applicant.
    If you are asserting a business confidentiality claim covering 
part or all of the information in the application, please submit a 
non-confidential version that EPA can place in the public docket for 
reference by other interested parties. Do not include on the 
``Worksheet Five: Application Summary'' page of the application any 
information that you wish to claim as confidential business 
information. These application information summary sheets will be 
posted on the EPA Web site (www.epa.gov/ozone/mbr) and included in 
Air Docket No. OAR-2003-0017. Applications that are not confidential 
business information will be placed in the Docket in their entirety. 
Please note, claiming business confidentiality may delay the ability 
of EPA to review your application.

F. Must I submit a ``Notice of Intent to Apply?''

    A ``Notice of Intent to Apply'' is not required, but would 
facilitate the organization of the application review during the 
Critical Use Exemption Process. If EPA is aware of the consortia and 
the individuals who intend to submit applications 30 days before the 
application deadline, the technical experts will be better 
positioned to review the application. This Notice may be submitted 
to Marta Montoro via e-mail at montoro.marta@epa.gov or via U.S. 
mail to U.S. Environmental Protection Agency, Office of Air and 
Radiation, Stratospheric Protection Division, 1200 Pennsylvania 
Ave., NW., 6205J, Washington, DC 20460 or by courier to U.S. 
Environmental Protection Agency, Office of Air and Radiation, 
Stratospheric Protection Division, 1310 L St., NW., Room 827L, 
Washington, DC 20005.

G. What if I submit an incomplete application?

    EPA will not accept any applications postmarked after August 8, 
2005. If the application is completed but postmarked after August 8, 
2005, EPA will not accept the application. If the application is 
postmarked by the deadline but is incomplete or missing any of the 
following data elements listed in the ``Re-Application Information 
Document'' available at https://www.epa.gov/ozone/mbr EPA will not 
accept the application and will not include the application in the 
U.S. nomination submitted for international consideration. These 
required elements include Worksheets 1, 2B, 2C, 2D, 4, and 5. 
However, the entire application (all Worksheets) must be submitted 
and applicants must submit any new data or updated information that 
is relevant. However, if the application is substantially complete 
with only minor errors, corrections will be accepted. EPA reviewers 
may also call applicants for further elaboration about their 
application, even if it is complete. All consortia or users who have 
not applied to EPA in the previous year (2004) must submit an entire 
completed application with all Worksheets.

H. What if I already applied in 2002 and/or 2003 and/or 2004?

    In March, 2004 and in November, 2004, the Parties decided that 
critical use exemptions would be granted for one year. As a result, 
users must apply to EPA for critical use exemptions on an annual 
basis. However, if a user group submitted a complete application to 
EPA in 2004, the user is only required to submit revised copies of 
the selected Worksheets listed above, though the entire application 
with all Worksheets must be on file with EPA. A list of the 
Worksheets is detailed above and is also available at https://
www.epa.gov/ozone/mbr. The remaining worksheets must only be 
completed if any information has changed since 2004.
    If a user has previously submitted a critical use exemption 
application to EPA in 2002 or 2003 (first and second rounds) but did 
not submit an application in 2004 (third round) then the all 
worksheets in the application must be submitted again in their 
entirety.

II. What Is the Legal Authority for the Critical Use Exemption?

A. What is the Clean Air Act (CAA) authority for implementing the 
Critical Use Exemption to the methyl bromide phaseout?

    In October 1998, the U.S. Congress amended the Clean Air Act by 
adding CAA sections 604(d)(6), 604(e)(3), and 604(h) (Section 764 of 
the 1999 Omnibus Consolidated and Emergency Supplemental 
Appropriations Act (Pub. L. 105-277; October 21, 1998)). The 
amendment requires EPA to conform the U.S. phaseout schedule for 
methyl bromide to the provisions of the Montreal Protocol for 
industrialized countries. Specifically, the amendment requires EPA 
to make regulatory changes to implement the following phaseout 
schedule:

25% reduction (from 1991 baseline) in 1999
50% reduction in 2001
70% reduction in 2003
100% reduction in 2005

    EPA published regulations in the Federal Register on June 1, 
1999 (64 FR 29240) and November 28, 2000 (65 FR 70795), instituting 
the phaseout reductions in the production and import of methyl 
bromide in accordance with the schedule listed above. Additionally, 
the 1998 amendment allowed EPA to exempt the production and import 
of methyl bromide from the phaseout for critical uses starting 
January 1, 2005 ``to the extent consistent with the Montreal 
Protocol'' (Section 764 of the 1999 Omnibus Consolidated and 
Emergency Supplemental Appropriations Act (Pub. L. 105-277, October 
21, 1998), section 604(d)(6) of the Clean Air Act).

B. What is the Montreal Protocol authority for granting a Critical 
Use Exemption after the methyl bromide phaseout?

    The Montreal Protocol provides an exemption to the phaseout of 
methyl bromide for critical uses in Article 2H, paragraph 5. The 
Parties to the Protocol included provisions for such an exemption in 
recognition that substitutes for methyl bromide may not be available 
by 2005 for certain uses of methyl bromide agreed by the Parties to 
be ``critical uses.''
    In their Ninth Meeting (1997), the Parties to the Protocol 
agreed to Decision IX/6, setting forth the following criteria for a 
``critical use'' determination:
    (a) That a use of methyl bromide should qualify as `critical' 
only if the nominating Party [e.g. U.S.] determines that:
    (i) The specific use is critical because the lack of 
availability of methyl bromide for that use would result in a 
significant market disruption; and
    (ii) There are no technically and economically feasible 
alternatives or substitutes available to the user that are 
acceptable from the standpoint of environment and health and are 
suitable to

[[Page 29497]]

the crops and circumstances of the nomination.
    (b) That production and consumption, if any, of methyl bromide 
for a critical use should be permitted only if:
    (i) All technically and economically feasible steps have been 
taken to minimize the critical use and any associated emission of 
methyl bromide;
    (ii) Methyl bromide is not available in sufficient quantity and 
quality from existing stocks of banked or recycled methyl bromide, 
also bearing in mind the developing countries' need for methyl 
bromide;
    (iii) It is demonstrated that an appropriate effort is being 
made to evaluate, commercialize and secure national regulatory 
approval of alternatives and substitutes, taking into consideration 
the circumstances of the particular nomination * * *. Non-Article 5 
Parties [e.g., the U.S.] must demonstrate that research programmes 
are in place to develop and deploy alternatives and substitutes * * 
*.
    In the context of the phaseout program, the use of the term 
consumption may be misleading. Consumption does not mean the ``use'' 
of a controlled substance, but rather is defined as the formula: 
Consumption = production + import -exports, of controlled substances 
(Article 1 of the Protocol and Section 601 of the CAA). A Class I 
controlled substance that was produced or imported through the 
expenditure of allowances prior to its phaseout date can continue to 
be used by industry and the public after that specific chemical's 
phaseout under EPA's phaseout regulations, unless otherwise 
precluded under separate regulations.
    In addition to the language quoted above, the Parties further 
agreed to request the TEAP to review nominations and make 
recommendations for approval based on the criteria established in 
paragraphs (a)(ii) and (b) of Decision IX/6.

III. How Will the U.S. Implement the Critical Use Exemption?

A. When will the exemption become available to U.S. users of methyl 
bromide?

    Under the provisions of both the CAA and the Montreal Protocol, 
the Critical Use Exemption became available to approved users on 
January 1, 2005. Allowances for subsequent years will be authorized 
through regulations. Until that date, all production and import of 
methyl bromide (except for those quantities that qualify for the 
quarantine and preshipment exemption) were required to conform to 
the phasedown schedule listed above (see Supplementary Information 
Section II A). For more information on the quarantine and 
preshipment exemption, please refer to 68 FR 238 (January 2, 2003).

B. What is the projected timeline for the Critical Use Exemption 
application process?

    There is both a domestic and international component to the 
Critical Use Exemption process. The following outline projects a 
timeline for the process for the next three years.

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May 23, 2005......................  Solicit applications for the methyl
                                     bromide Critical Use Exemption for
                                     2007 and beyond.
August 8, 2005....................  Deadline for submitting Critical Use
                                     Exemption applications to EPA.
Fall 2005.........................  U.S. government (EPA, Department of
                                     State, U.S. Department of
                                     Agriculture, and other interested
                                     federal agencies) create U.S.
                                     Critical Use nomination package.
January 31, 2006..................  Deadline for U.S. government to
                                     submit U.S. nomination package to
                                     the Protocol Parties.
Early 2006........................  Review of the nominations packages
                                     for Critical Use Exemptions by the
                                     Technical and Economic Assessment
                                     Panel (TEAP) and Methyl Bromide
                                     Technical Options Committee
                                     (MBTOC).
Mid 2006..........................  Parties consider TEAP/MBTOC
                                     recommendations.
Late 2006.........................  Parties authorize Critical Use
                                     Exemptions for methyl bromide for
                                     production and consumption in 2007
                                     (supplemental request) and 2008.
Early-Mid 2007....................  EPA publishes proposal and final
                                     rule for 2007 supplemental request.
Mid 2007..........................  EPA publishes proposed rule for
                                     allocating Critical Use Exemptions
                                     in the U.S. for 2008.
Late 2007.........................  EPA publishes final rule allocating
                                     Critical Use Exemptions in the U.S.
                                     for the 2008 control period.
January 1, 2008...................  Critical Use Exemption permits the
                                     limited production and import of
                                     methyl bromide beyond the phaseout
                                     date for specific uses for the 2008
                                     control period.
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    Authority: 42 U.S.C. 7414, 7601, 7671-7671q.

    Dated: May 16, 2005.
Brian J. McLean,
Director, Office of Atmospheric Programs.
[FR Doc. 05-10195 Filed 5-20-05; 8:45 am]
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